VIRAL SPIRAL - HOW THE COMMONERS BUILT A DIGITAL REPUBLIC OF THEIR OWN,
DAVID BOLLIER
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ATTRIBUTION
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To Norman Lear, dear friend and intrepid explorer of the frontiers of
democratic practice


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ACKNOWLEDGMENTS
---------------

In this book, as with any book, dozens of barely visible means of support
conspired to help me. It has been hard work, but any author with sufficient
honesty and self-awareness realizes the extent to which he or she is a lens
that refracts the experiences, insights, and writings of others. It is a
pleasure to pay tribute to those who have been helpful to me.

I am grateful to Larry Lessig, a singular visionary in developing the commons
as a new paradigm, for helping to make this book possible. He submitted to
several interviews, facilitated my research within the Creative Commons
community, and, despite our shared involvements in various projects over the
years, scrupulously respected my independence. It is also a pleasure to thank
the Rockefeller Foundation for generously helping to cover my research,
reporting, and travel expenses.

I interviewed or consulted with more than one hundred people in the course of
writing this book. I want to thank each of them for carving out some time to
speak with me and openly sharing their thoughts. The Creative Commons and
iCommons staff were particularly helpful in making time for me, pointing me
toward useful documents and Web sites and sharing their expertise. I must
single out Glenn Otis Brown, Mia Garlick, Joichi Ito, Heather Ford, Tomislav
Medak, Ronaldo Lemos, and Hal Abelson for their special assistance.

Since writing a book resembles parachuting into a forest and then trying to
find one's way out, I was pleased to have many friends who recommended some
useful paths to follow. After reading some or all of my manuscript, the
following friends and colleagues offered many invaluable suggestions and
criticisms: Charles Schweik, Elliot E. Maxwell, John Seely Brown, Emily Levine,
Peter Suber, Julie Ristau, Jay Walljasper, Jonathan Rowe, Kathryn Milun, Laurie
Racine, and Gigi Sohn. It hardly requires saying that none of these astute
readers bears any responsibility for the choices that I ultimately made.

For the past seven years, the Tomales Bay Institute, recently renamed On the
Commons, has nurtured my thinking and commitment to the commons. (On the
Commons has no formal affiliation to the Creative Commons world, but it
enthusiastically shares its commitments to the commons.) I am grateful to my
colleagues Peter Barnes, Harriet Barlow, and Julie Ristau for their unflagging
support of my book over the past three years, even when it impinged on my other
responsibilities.

In the early stages of this book, Elaine Pagels was unusually generous in
offering her help, and my conversations with Nick Bromell helped pry loose some
important insights used in my conclusion. Cherry Alvarado was of extraordinary
help to me as she transcribed scores of interviews with unfailing good humor
and precision. I also wish to thank Andrew Ryder for resourceful assistance in
the early stages of my research.

I have dedicated this book to my dear friend and mentor Norman Lear. The zeal,
imagination, and grace that he brings to the simple imperatives of citizenship
have been more instructive and inspirational than he perhaps realizes. He has
also been of incalculable support to me in my headstrong explorations of the
commons.

Finally, at the end of the day, when I emerge from my writer's lair or return
from yet another research and reporting trip, it is Ellen and my sons Sam and
Tom who indulge my absences, mental and physical, and reacquaint me with the
things that matter most. I could not wish for more. David Bollier Amherst,
Massachusetts May 1, 2008


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INTRODUCTION
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It started with that great leap forward in human history the Internet, which
gave rise to free software in the 1980s and then the World Wide Web in the
early 1990s. The shockingly open Internet, fortified by these tools, began
empowering a brash new culture of rank amateurs — you and me. And this began
to reverse the fierce tide of twentieth-century media. Ordinary people went
online, if only to escape the incessant blare of television and radio, the
intrusive ads and the narrow spectrum of expression. People started to discover
their own voices . . . and their own capabilities . . . and one another.

As the commoners began to take charge of their lives, they discovered anew that
traditional markets, governments, and laws were often not serving their needs
very well. And so some pioneers had the audacity to invent an infrastructure to
host new alternatives: free and open-source software. Private licenses to
enable sharing and bypass the oppressive complications of copyright law. A
crazy quilt of Web applications. And new types of companies that thrive on
servicing social communities on open platforms.

At the dawn of the twenty-first century, the commoners began to make some
headway. More people were shifting their attention away from commercial media
to homegrown genres — listservs, Web sites, chat rooms, instant messaging,
and later, blogs, podcasts, and wikis. A swirling mass of artists, legal
scholars, techies, activists, and even scientists and businesses began to
create their own online commons. They self-organized themselves into a loosely
coordinated movement dedicated to “free culture.”

The viral spiral was under way.

Viral spiral? /Viral/, a term borrowed from medical science, refers to the way
in which new ideas and innovations on the Internet can proliferate with
astonishing speed. A video clip, a blog post, an advertisement released on the
Internet tumbles into other people's consciousness in unexpected ways and
becomes the raw feedstock for new creativity and culture. This is one reason
the Internet is so powerful — it virally propagates creativity. A novel idea
that is openly released in the networked environment can often find its way to
a distant person or improbable project that can really benefit from it. This
recombinative capacity — efficiently coordinated through search engines, Web
logs, informal social networks, and other means— radically accelerates the
process of innovation. It enlivens democratic culture by hosting egalitarian
encounters among strangers and voluntary associations of citizens. Alexis de
Tocqueville would be proud.

The /spiral/ of /viral spiral/ refers to the way in which the innovation of one
Internet cohort rapidly becomes a platform used by later generations to build
their own follow-on innovations. It is a corkscrew paradigm of change: /viral/
networking feeds an upward /spiral/ of innovation. The cutting-edge thread
achieves one twist of change, positioning a later thread to leverage another
twist, which leverages yet another. Place these spirals in the context of an
open Internet, where they can sweep across vast domains of life and catalyze
new principles of order and social practice, and you begin to get a sense of
the transformative power of viral spirals.

The term /viral spiral/ is apt, additionally, because it suggests a process of
change that is anything but clean, direct, and mechanical. In the networked
environment, there is rarely a direct cause-andeffect. Things happen in messy,
irregular, indeterminate, serendipitous ways. Life on the Internet does not
take place on a stable Cartesian grid — orderly, timeless, universal — but
on a constantly pulsating, dynamic, and labyrinthine /web/ of finely
interconnected threads radiating through countless nodes. Here the context is
as rich and generative as any individual, /Viral spiral/ calls attention to the
holistic and historical dynamics of life on the Web, which has a very different
metaphysical feel than the world of twentieth-century media.

The viral spiral began with free software (code that is free to use, not code
at no cost) and later produced the Web. Once these open platforms had
sufficiently matured, tech wizards realized that software's great promise is
not as a stand-alone tool on PCs, but as a social platform for Web-based
sharing and collaboration. The commoners could then begin to imagine: How might
these tools be used to overcome the arbitrary and confusing limitations of
copyright law? One answer, the Creative Commons (CC) licenses, a free set of
public licenses for sharing content, helped mitigate the legal risks of sharing
of works under copyright law. This innovation, in turn, helped unleash a
massive wave of follow-on innovations.

Web 2.0 applications flourished, many of them relying upon sharing made legal
through CC licenses. By avoiding the costly overhead of centralized production
and marketing, and tapping into the social vitality of a commons, Web 2.0
platforms have enabled ordinary people to share photos (Flickr), favorite
browser bookmarks (del.icio.us), favorite news stories (Digg, Reddit), and
homemade videos (YouTube). They let people access user-created archives
(Wikipedia, Internet Archive, Ourmedia.org), collaborate in news gathering
(OhmyNews, Assignment Zero), participate in immersive communities (Second
Life), and build open-business models (Magnatune, Revver, Jamendo).

This book seeks to trace the long arc of change wrought by a kaleidoscopic
swarm of commoners besieged by oppressive copyright laws, empowered by digital
technologies, and possessed of a vision for a more open, democratic society.
Their movement has been fired by the rhetoric of freedom and actualized by
digital technologies connected by the Internet. These systems have made it
extremely cheap and easy for ordinary people to copy and share things, and to
collaborate and organize. They have democratized creativity on a global scale,
challenging the legitimacy and power of all sorts of centralized, hierarchical
institutions.

This larger story has rarely been told in its larger scope. It is at base a
story of visionary individuals determined to protect the shared code, content,
and social community that they have collectively generated. Richard Stallman
pioneered the development of free software; Lawrence Lessig waged challenges
against excessive copyright protection and led the development of the Creative
Commons licenses; citizen-archivist Eric Eldred fought to preserve his online
body of public-domain literature and the community that grew up around it.
These are simply the better-known leaders of a movement that has attracted
thousands of commoners who are building legally defensible commons into which
to pour their creative energies and live their lives.

The commons — a hazy concept to many people — is a new paradigm for
creating value and organizing a community of shared interest. It is a vehicle
by which new sorts of self-organized publics can gather together and exercise
new types of citizenship. The commons can even serve as a viable alternative to
markets that have grown stodgy, manipulative, and coercive. A commons arises
whenever a given community decides that it wishes to manage a resource in a
collective manner, with special regard for equitable access, use, and
sustainability. The commons is a means by which individuals can band together
with like-minded souls and express a sovereignty of their own.

Self-styled commoners can now be found in dozens of nations around the world.
They are locally rooted but internationally aware citizens of the Internet.
They don't just tolerate diversity (ethnic, cultural, aesthetic, intellectual),
they celebrate it. Although commoners may have their personal affinities —
free software, open-access publishing, remix music, or countless others —
they tend to see themselves as part of a larger movement. They share an
enthusiasm for innovation and change that burbles up from the bottom, and are
known to roll their eyes at the thick-headedness of the mainstream media, which
always seem to be a few steps behind.

If there is an element of self-congratulatory elitism at times, it stems from
the freedom of commoners to negotiate their own rules and the pleasure of
outmaneuvering conventional institutions. The commoners know how to plug into
the specialized Web sites and practitioner communities that can provide
just-in-time, highly specialized expertise. As Herbert Simon, the
computer-oriented social scientist, once put it, “The meaning of ‘knowing'
today has shifted from being able to remember and repeat information to being
able to find and use it.” [^1] Commoners realize that this other way of
being, outside hierarchical institutions, in the open space where viral spirals
of innovation are free to materialize, is an important source of their
insurgent power.

It is perilous to generalize about a movement that has so many disparate parts
pushing and pulling and innovating in so many different directions at once. Yet
it is safe to say that the commoners— a digital embodiment of /e pluribus
unum/ — share a common goal. They wish to transcend the limitations of
copyright law in order to build their own online communities. It's not as if
the commoners are necessarily hostile to copyright law, markets, or centralized
institutions. Indeed, many of them work for large corporations and
universities; many rely on copyright to earn a livelihood; many are
entrepreneurs.

Yet the people who are inventing new commons have some deeper aspirations and
allegiances. They glimpse the liberating potential of the Internet, and they
worry about the totalizing inclinations of large corporations and the state,
especially their tendency to standardize and coerce behavior. They object as
well to processes that are not transparent. They dislike the impediments to
direct access and participation, the limitations of credentialed expertise and
arbitrary curbs on people's freedom.

One of the first major gatherings of international commoners occurred in June
2006, when several hundred people from fifty nations converged on Rio de
Janeiro, Brazil, for the iCommons Summit. The people of this multinational,
eclectic vanguard blend the sophistication of the establishment in matters of
power and politics with the bravado and playfulness of Beat poets. There were
indie musicians who can deconstruct the terms of a record company licensing
agreement with Talmudic precision. There were Web designers who understand the
political implications of arcane rules made by the World Wide Web Consortium, a
technical standards body. The lawyers and law professors who discourse about
Section 114 of the Copyright Act are likely to groove on the remix career of
Danger Mouse and the appropriationist antics of Negativland, a sound-collage
band. James Boyle and Jennifer Jenkins, two law scholars at Duke Law School,
even published a superhero comic book, /Down by Law!/, which demystifies the
vagaries of the “fair use doctrine” through a filmmaker character
resembling video game heroine Lara Croft.[^2] (Fair use is a provision of
copyright law that makes it legal to excerpt portions of a copyrighted work for
noncommercial, educational, and personal purposes.)

THE RISE OF SOCIALLY CREATED VALUE
..................................

The salience of electronic commerce has, at times, obscured an important fact
— that the commons is one of the most potent forces driving innovation in our
time. Individuals working with one another via social networks are a growing
force in our economy and society. This phenomenon has many manifestations, and
goes by many names — “peer production,” “social production,” “smart
mobs,” the “wisdom of crowds,” “crowdsourcing,” and “the
commons.”[^3] The basic point is that /socially created value/ is
increasingly competing with conventional markets, as GNU/Linux has famously
shown. Through an open, accessible commons, one can efficiently tap into the
“wisdom of the crowd,” nurture experimentation, accelerate innovation, and
foster new forms of democratic practice.

This is why so many ordinary people — without necessarily having degrees,
institutional affiliations, or wealth — are embarking upon projects that, in
big and small ways, are building a new order of culture and commerce. It is an
emerging universe of economic, social, and cultural activity animated by
self-directed amateurs, citizens, artists, entrepreneurs, and irregulars.

Hugh McGuire, a Montreal-based writer and Web designer, is one. In 2005, he
started LibriVox, a digital library of free public-domain audio books that are
read and recorded by volunteers. More than ten thousand people a day visit the
Web site to download audio files of Twain, Kafka, Shakespeare, Dostoyevsky, and
others, in nearly a dozen languages.[^4] The Faulkes Telescope Project in
Australia lets high school students connect with other students, and with
professional astronomers, to scan the skies with robotic, online
telescopes.[^5] In a similar type of learning commons, the Bugscope project in
the United States enables students to operate a scanning electronic microscope
in real time, using a simple Web browser on a classroom computer connected to
the Internet.[^6]

Thousands of individual authors, musicians, and filmmakers are using Web tools
and Creative Commons licenses to transform markets for creative works — or,
more accurately, to blend the market and commons into integrated hybrids. A
nonprofit humanitarian group dedicated to doing reconstructive surgery for
children in poor countries, Interplast, produced an Oscar-winning film, /A
Story of Healing/, in 1997. Ten years later, it released the film under a
Creative Commons license as a way to publicize Interplast's work while
retaining ownership of the film: a benefit for both film buffs and
Interplast.[^7]

Scoopt, a Glasgow, Scotland–based photography agency, acts as a broker to
help bloggers and amateurs sell newsworthy photos and videos to the commercial
media.[^8] The Boston band Two Ton Shoe released its music on the Web for free
to market its concerts. Out of the blue, a South Korean record label called one
day to say it loved the band and could it come over to Seoul, all expenses
paid, to perform four concerts? Each one sold out.[^9] Boing Boing blogger and
cyber-activist Cory Doctorow released his 2003 science-fiction novel, /Down and
Out in the Magic Kingdom/, under a CC license, reaping a whirlwind of worldwide
exposure.[^10]

THE COMMONERS BUILD A DIGITAL REPUBLIC OF THEIR OWN
...................................................

The profusion of commons on the Internet may appear to be a spontaneous and
natural development. In fact, it is a hard-won achievement. An infrastructure
of software, legal rights, practical expertise, and social ethics had to be
imagined, built, and defended. In a sense, the commoners had to invent
themselves as commoners. They had to learn to recognize their own distinct
interests — in how to control their creative works, how to organize their
communities, and how to engage with market players without being co-opted. They
have, in fact, invented a new sort of democratic polity within the edifice of
the conventional nation-state.

The commoners differ from most of their corporate brethren in their enthusiasm
for sharing. They prefer to freely distribute their writing, music, and videos.
As a general rule, they don't like to encase their work in airtight bubbles of
property rights reinforced by technological locks. They envision cyberspace
more as a peaceable, sociable kingdom than as a take-no-prisoners market. They
honor the individual while respecting community norms. They are enthusiastic
about sharing while respecting the utility of markets. Idealistic yet
pragmatic, they share a commitment to open platforms, social cooperation, and
elemental human freedoms.

It is all very well to spout such lofty goals. But how to actualize them? That
is the story that the following pages recount. It has been the work of a
generation, some visionary leaders, and countless individuals to articulate a
loosely shared vision, build the infrastructure, and develop the social
practices and norms. This project has not been animated by a grand political
ideology, but rather is the result of countless initiatives, grand and
incremental, of an extended global family of hackers, lawyers, bloggers,
artists, and other supporters of free culture.

And yet, despite its focus on culture and its aversion to conventional
politics, the growth of this movement is starting to have political
implications. In an influential 2003 essay, James F. Moore announced the
arrival of “an emerging second superpower.”[^11] It was not a nation, but
the coalescence of people from around the world who were asserting common
values, and forming new public identities, via online networks. The people of
this emerging “superpower,” Moore said, are concerned with improving the
environment, public health, human rights, and social development. He cited as
early examples the international campaign to ban land mines and the Seattle
protests against the World Trade Organization in 1999. The power and legitimacy
of this “second superpower” do not derive from the constitutional framework
of a nation-state, but from its ability to capture and project people's
everyday feelings, social values, and creativity onto the world stage. Never in
history has the individual had such cheap, unfettered access to global
audiences, big and small.

The awakening superpower described in /Viral Spiral/ is not a conventional
political or ideological movement that focuses on legislation and a clutch of
“issues.” While commoners do not dismiss these activities as unimportant,
most are focused on the freedom of their peer communities to create,
communicate, and share. When defending these freedoms requires wading into
conventional politics and law, they are prepared to go there. But otherwise,
the commoners are more intent on building a kind of parallel social order,
inscribed within the regnant political economy but animated by their own
values. Even now, the political/cultural sensibilities of this order are only
vaguely understood by governments, politicians, and corporate leaders. The idea
of “freedom without anarchy, control without government, consensus without
power” — as Lawrence Lessig put it in 1999[^12] —is just too
counterintuitive for the conventionally minded to take seriously.

Very early on, the commoners identified copyright law as a major impediment to
their vision of a “sharing economy.” It is not that they revile copyright
law as such; indeed, many commoners defend the importance of copyright law to
creative endeavor. The problem, they insist, is that large corporations with
vast inventories of copyrighted works — film studios, record labels, book
publishers, software companies — have used their political power unfairly to
extend the scope and term of copyright privileges. A limited monopoly granted
by the U.S. Constitution has morphed into an expansive, near-perpetual
monopoly, enforced by intrusive technologies and draconian penalties.

The resulting curbs on citizen freedom, as large entertainment and media
corporations gain legal privileges at the expense of the public, is a
complicated issue that I return to in chapter 2. But it is worth noting briefly
why copyright law has been particularly harmful to the commons in the digital
age. When Congress enacted a major revision of U.S. copyright law in 1976, it
eliminated a longstanding requirement that works had to be formally registered
in order to receive copyright protection.[^13] Under the new law, /everything/
became automatically copyrighted upon creation. This meant that all information
and artistic work created after 1978 (when the law took effect) has been born
into an invisible envelope of property rights. It sounds appealing to eliminate
bureaucratic formalities like registration. But the shift to automatic
copyright has meant that every digital scribble is born with a © branded on
its side. /Culture = private property/.

The various industries that rely on copyrights have welcomed this development
because it helps them portray their ownership rights as all-encompassing. They
can cast the public's right to use works without permission or payment —
traditionally guaranteed under the fair use doctrine and the public domain —
as exceptions to the general rule of absolute property rights. “What could be
wrong with enclosing works in ever-stronger packages of property rights?” the
music and film industries argue. “That's how new economic wealth is
created.” The media oligopolies that control most of television, film, music,
and news gathering naturally want to protect their commercial content. It is
the fruit of a vast system of fixed investment — equipment, high-priced
stars, lawyers, distribution channels, advertising, etc. — and copyright law
is an important tool for protecting that value.

The Internet has profoundly disrupted this model of market production, however.
The Internet is a distributed media system of low-cost capital (your personal
computer) strung together with inexpensive transmission and software. Instead
of being run by a centralized corporation that relies upon professionals and
experts above all else, the Internet is a noncommercial infrastructure that
empowers amateurs, citizens, and ordinary individuals in all their quirky,
authentic variety. The mass media have long regarded people as a commodifiable
audience to be sold to advertisers in tidy demographic units.

Now, thanks to the Internet, “the people formerly known as the audience”
(in Jay Rosen's wonderful phrase) are morphing into a differentiated organism
of flesh-and-blood, idiosyncratic individuals, as if awakening from a spell.
Newly empowered to speak as they wish, in their own distinctive, personal
voices to a global public of whoever cares to listen, people are creating their
own transnational tribes. They are reclaiming culture from the tyranny of
mass-media economics and national boundaries. In Lessig's words, Internet users
are overthrowing the “read only” culture that characterized the “weirdly
totalitarian” communications of the twentieth century. In its place they are
installing the “read/write” culture that invites everyone to be a creator,
as well as a consumer and sharer, of culture.[^14] A new online citizenry is
arising, one that regards its socially negotiated rules and norms as at least
as legitimate as those established by conventional law.

Two profoundly incommensurate media systems are locked in a struggle for
survival or supremacy, depending upon your perspective or, perhaps, mutual
accommodation. For the moment, we live in a confusing interregnum — a
transition that pits the dwindling power and often desperate strategies of
Centralized Media against the callow, experimental vigor of Internet-based
media. This much is clear, however: a world organized around centralized
control, strict intellectual property rights, and hierarchies of credentialed
experts is under siege. A radically different order of society based on open
access, decentralized creativity, collaborative intelligence, and cheap and
easy sharing is ascendant. Or to put it more precisely, we are stumbling into a
strange hybrid order that combines both worlds — mass media and online
networks — on terms that have yet to be negotiated.

THE RISE OF THE COMMONERS
.........................

But who shall do the negotiating? Who will set forth a compelling alternative
to centralized media, and build it? That task has fallen to a loosely
coordinated global federation of digital tribes — the free software and
open-source hackers, the Wikipedians, the bloggers and citizen-journalists, the
remix musicians and filmmakers, the avant-garde artists and political
dissidents, the educators and scientists, and many others. It is a spontaneous
folk-tech conspiracy that belongs to everyone and no one.

As we will see in chapter 1, Richard Stallman, the legendary hacker, played an
indispensable first-mover role by creating a sovereign domain from which to
negotiate with commercial players: free software. The software commons and
later digital commons inspired by it owe an incalculable debt to Stallman's
ingenious legal innovation, the General Public License, or GPL, launched in
1989. The GPL is a license for authorizing anyone to use a copyrighted software
program so long as any copies or derivative versions are also made available on
the same terms. This fairly simple license enables programmers to contribute
code to a common pool without fear that someone might privatize and destroy the
commons.

As the computer revolution continued through the 1980s and the Internet went
wide in the 1990s, the antisocial, antidemocratic implications of copyright law
in networked spaces became more evident. As we will see in chapter 2, a growing
community of progressive legal scholars blew the whistle on some nasty
developments in copyright law that were shrinking the public's fair use rights
and the public domain. Scholars such as James Boyle, Pamela Samuelson, Jessica
Litman, Yochai Benkler, Lawrence Lessig, Jonathan Zittrain, and Peter Jaszi
provided invaluable legal analyses about the imperiled democratic polity of
cyberspace.

By the late 1990s, this legal scholarship was in full flower, Internet usage
was soaring, and the free software movement produced its first significant free
operating system, GNU/Linux. The commoners were ready to take practical action.
Lessig, then a professor at Harvard Law School, engineered a major
constitutional test case, /Eldred v. Reno/ (later /Eldred v. Ashcroft/), to try
to strike down a twentyyear extension of copyright terms — a case that
reached the U.S. Supreme Court in 2002. At the same time, Lessig and a number
of his colleagues, including MIT computer scientist Hal Abelson, Duke law
professor James Boyle, and Villanova law professor Michael W. Carroll, came
together to explore innovative ways to protect the public domain. It was a rare
moment in history in which an ad hoc salon of brilliant, civic-minded thinkers
from diverse fields of endeavor found one another, gave themselves the freedom
to dream big thoughts, and embarked upon practical plans to make them real.

The immediate upshot of their legal and techno ingenuity, as we will see in
chapters 3 and 4, was the drafting of the Creative Commons licenses and the
organization that would promote them. The purpose of these free, standardized
public licenses was, and is, to get beyond the binary choice imposed by
copyright law. Why must a work be considered either a chunk of privately owned
property or a kind of nonproperty completely open to anyone without constraint
(“in the public domain”)? The CC licenses overcome this stifling either/or
logic by articulating a new middle ground of ownership that sanctions sharing
and collaboration under specified terms. To stress its difference from
copyright law, which declares “All Rights Reserved,” the Creative Commons
licenses bear the tagline “Some Rights Reserved.”

Like free software, the CC licenses paradoxically rely upon copyright law to
legally protect the commons. The licenses use the rights of ownership granted
by copyright law not to exclude others, but to invite them to share. The
licenses recognize authors' interests in owning and controlling their work —
but they also recognize that new creativity owes many social and
intergenerational debts. Creativity is not something that emanates solely from
the mind of the “romantic author,” as copyright mythology has it; it also
derives from artistic communities and previous generations of authors and
artists. The CC licenses provide a legal means to allow works to circulate so
that people can create something new. /Share, reuse, and remix, legally/, as
Creative Commons puts it.

After the licenses were introduced in December 2002, they proliferated
throughout the Internet and dozens of nations as if by spontaneous combustion.
It turns out that the licenses have been more than a legal fix for the
limitations of copyright law. They are a powerful form of social signaling. The
licenses have proven to be a flag for commoners to advertise their identities
as members of a culturally insurgent sharing economy — an aesthetic/political
underground, one might say. Attaching the CC logo to one's blog, video, MP3
file, or laptop case became a way to proclaim one's support for free culture.
Suddenly, all sorts of participatory projects could be seen as elements of a
larger movement. By 2007, authors had applied one or more of six CC licenses to
90 million works, by one conservative estimate, or more than 220 million works
by another estimate. Collectively, CC-licensed works constitute a class of
cultural works that are “born free” to be legally shared and reused with
few impediments.

A great deal of the Creative Commons story revolves around its founder, the
cerebral yet passionate Larry Lessig, a constitutional law professor at Harvard
in the mid-1990s until a move to Stanford Law School in 2000. As a scholar with
a sophisticated grasp of digital technologies, Lessig was one of the first to
recognize that as computers became the infrastructure for society, software
code was acquiring the force of law. His 1999 classic, /Code and Other Laws of
Cyberspace/, is renowned for offering a deep theoretical framework for
understanding how politics, law, technology, and social norms shape the
character of cyberspace — and in turn, any society.

In popularizing this message, it didn't hurt that Lessig, an experienced
classroom lecturer, is a poised and spellbinding performer. On the tech and
copyright circuit, in fact, he has become something of a rock star. With his
expansive forehead and wire glasses, Lessig looks every bit the professor he
is. Yet in his signature black jeans and sport jacket, delivering punchy
one-liners punctuated by arresting visuals projected on a big screen behind
him, Lessig makes a powerful impression. He's a geek-chic techie, intellectual,
legal activist, and showman all rolled into one.

From the beginning, Lessig and his colleagues wondered, How far can the sharing
ethic be engineered? Just how far can the idea of free culture extend? As it
turns out, quite far. At first, of course, the free culture project was applied
mostly to Web-based text and music. But as we see in chapters 5 through 12, the
technologies and ethic of free culture have rapidly taken root in many creative
sectors of society — video, music, books, science, education — and even
business and international arts and culture.

*/Remix culture./* Thanks to digital technologies, musicians can sample
verbatim snippets of other musicians' work in their own works, producing
“remixes” that blend sounds from a number of copyrighted songs. It's all
patently illegal, of course, unless you're wealthy enough to pay for the rights
to use a sample. But that hasn't stopped artists.

In fact, the underground remix scene has become so robust that even established
artists feel obliged to engage with it to bolster their street cred. With a
wink and a nudge from record labels, major rap stars like Jay-Z and Eminem have
released instrumental tracks of their records in the hope and expectation that
remix /auteurs/ will recycle the tracks. Record labels have quietly relied on
mixtapes— personalized compilations of tracks — to gain exposure and
credibility.[^15] To help an illegal social art go legit, many artists are
using Creative Commons licenses and public-domain sound clips to build a legal
body of remix works.

In the video world, too, the remix impulse has found expression in its own form
of derivative creativity, the mashup. From underground remakes of /Star Wars/
films to parodies of celebrities, citizenamateurs are taking original video
clips and mixing them with other images, pop music tracks, and their own
narrations. When Alaska senator Ted Stevens compared the Internet to a
“series of tubes,” video clips of his rambling speech were mashed up and
set to a techno dance beat. Beyond this playful subculture, serious filmmakers
are using CC licenses on their works to develop innovative distribution systems
that attract large audiences and earn money. Machinima animations — a
filmmaking technique that uses computer game action sequences, shot with
in-game cameras and then edited together — are pioneering a new market niche,
in part through their free distribution under a CC license.

*/Open business./* One of the most surprising recent developments has been the
rise of “open business” models. Unlike traditional businesses that depend
upon proprietary technology or content, a new breed of businesses see lucrative
opportunities in exploiting open, participatory networks. The pioneer in this
strategy was IBM, which in 2000 embraced GNU/Linux, the open-source computer
operating system, as the centerpiece of its service and consulting
business.[^16] Dozens of small, Internet-based companies are now exploiting
open networks to build more flexible, sustainable enterprises.

The key insight about many open-platform businesses is that they no longer look
to copyright or patent law as tools to assert market control. Their goal is not
to exclude others, but to amass large communities. Open businesses understand
that exclusive property rights can stifle the value creation that comes with
mass participation, and so they strive to find ways to “honor the commons”
while making money in socially acceptable forms of advertising, subscriptions,
or consulting services. The brave new economics of “peer production” is
enabling forward-thinking businesses to use social collaboration among
thousands, or even millions, of people to create social communities that are
the foundation for significant profits. /BusinessWeek/ heralded this
development in a major cover story in 2005, “The Power of Us,” and called
sharing “the net's next disruption.”[^17]

*/Science/* as a commons. The world of scientific research has long depended on
open sharing and collaboration. But increasingly, copyrights, patents, and
university rules are limiting the flow of scientific knowledge. The resulting
gridlock of rights in knowledge is impeding new discoveries and innovation.
Because of copyright restrictions and software incompatibilities, scientists
studying genetics, proteins, and marine biology often cannot access databases
containing vital research. Or they cannot easily share physical samples of lab
samples. When the maker of Golden Rice, a vitamin-enhanced bioengineered rice,
tried to distribute its seeds to millions of people in poor countries, it first
had to get permissions from seventy patent holders and obtain six Material
Transfer Agreements (which govern the sharing of biomedical research
substances).[^18]

The problem of acquiring, organizing, and sharing scientific knowledge is
becoming more acute, paradoxically enough, as more scientific disciplines
become dependent on computers and the networked sharing of data. To help deal
with some of these issues, the Creative Commons in 2005 launched a new project
known as the Science Commons to try to redesign the information infrastructure
for scientific research. The basic idea is to “break down barriers to sharing
that are hindering innovation in the sciences,” says John Wilbanks, executive
director of Science Commons. Working with the National Academy of Sciences and
other research bodies, Wilbanks is collaborating with astronomers,
archaeologists, microbiologists, and medical researchers to develop better ways
to make vast scientific literatures more computer-friendly, and databases
technically compatible, so that they can be searched, organized, and used more
effectively.

*/Open education and learning./* A new class of knowledge commons is poised to
join free and open-source software, the Creative Commons and Wikipedia as a
coherent social movement. The new groundswell goes by the awkward name “Open
Educational Resources,” or OER.[^19] One of the earlier pioneers of the
movement was the Massachusetts Institute of Technology which has put virtually
all of its course materials on the Web, for free, through its OpenCourseWare
initiative. The practice has now spread to scores of colleges and universities
around the world, and inspired a broader set of OER initiatives: digital
repositories for articles, reports, and data; open-access scholarly journals
that bypass expensive commercial publishers; and collaborative Web sites for
developing teaching materials. There are wikis for students and scholars
working together, sites to share multimedia presentations, and much more.

The OER movement has particular importance for people who want to learn but
don't have the money or resources — scholars in developing countries,
students struggling to pay for their educations, people in remote or rural
locations, people with specialized learning needs. OER is based on the
proposition that it will not only be cheaper or perhaps free if teachers and
students can share their materials through the Web, it will also enable more
effective types of learning. So the OER movement is dedicated to making
learning tools cheaper and more accessible. The revolutionary idea behind OER
is to transform traditional education — teachers imparting information to
passive students — into a more learnerdriven process facilitated by teachers.
Self-directed, socially driven learning supplants formal, hierarchical modes of
teaching.

*/The international sharing economy./* Shortly after the first CC licenses were
released in 2002, dozens of exceptionally capable volunteers — from Japan,
Finland, Brazil, South Africa, and other countries — came knocking on the
door of CC. How can we adapt the American CC licenses to our respective
national legal systems? they asked. This unexpected turn prompted the Creative
Commons to inaugurate Creative Commons International, based in Berlin, Germany,
to supervise the complicated task of “porting” the U.S. licenses to other
legal jurisdictions. To date, CC affiliates in fortyseven nations have adapted
the U.S. licenses to their legal systems, and another seventeen have porting
projects under way.

The volunteers include avant-garde artists in Croatia, free software
programmers in the Netherlands, South Korean judges, Italian law professors,
South African musicians, Malaysian citizenjournalists, Bulgarian filmmakers,
and Taiwanese songwriters. The passionate international licensing movement has
even been embraced by the Brazilian government, which has proclaimed itself the
first Free Culture Nation. As usage of the licenses spreads, they are
effectively becoming the default international legal structure of the sharing
economy.

A NEW TYPE OF EMERGENT DEMOCRACY?
.................................

Peter Suber, a leading champion of open-access scholarly publishing, once
explained to me why a disparate, rambunctious crowd of commoners spread around
the globe might wish to work together to do something about their plight.
“People are taking back their culture,” Peter said. “People who have not
been served by the current law have quietly endured it until they saw that they
didn't have to.”[^20] The Creative Commons has become both a symbol and a
tool for people to reclaim creativity and culture from the mass-media
leviathans. The licenses and the organization have become instruments to
advance a participatory, sharing economy and culture.

How far can it go? Will it significantly affect conventional politics and
government? Can it bring market forces and social needs into a more positive
alignment?

This book is about the struggle to imagine this new world and push it as far as
it can go. It is, in one sense, a history, but “history” suggests that the
story is over and done. The truth is that the commons movement is tremendously
robust and expansive right now. The early history about free software, the
public domain, and the Creative Commons is simply a necessary foundation for
understanding the propulsive logic of what is happening.

The story told in these pages is not entirely new; it has been told in
fragments and through the restless lens of journalism. But it has not been told
in its larger conceptual and historical sweep. That's partly because most of
its players are usually seen in isolation from one another, and not put in the
context of the larger open-platform revolution. It's also because the free
culture movement, nothwithstanding its vigor, is generally eclipsed by the
bigmoney corporate developments that are ostensibly more important. But that is
precisely the problem: conventional economics does not understand the actual
significance of open platforms and the commons. We need to understand what the
online commons represent: a powerful sociotechnological paradigm that is
reordering some basic dynamics of creative practice, culture, politics, and
everyday life.

I am no bystander in this story, it must be said, but a commoner who has
grappled with the quandaries of copyright law and the public domain for nearly
twenty years. In 2001, after co-founding Public Knowledge, a Washington
advocacy group to defend the public's stake in copyright and Internet policies,
I went on to write books on the market enclosure of myriad commons and on the
absurd expansions of copyright and trademark law. Over the course of this work,
I discovered how a commons analysis can help us understand the digital
revolution. It can help us see that it is not just about technological
innovation, but about social and legal innovations. Reading Elinor Ostrom and
Yochai Benkler, in particular — two leading theorists of the commons — I
came to realize that social communities, and not just markets, must be
recognized as powerful vehicles for creating value. I realized that many basic
assumptions about property rights, as embedded in copyright law and
neoclassical economics, fail to take account of the generative power of online
communities.

How then shall we create the commons and protect it? That question lies at the
core of this book and the history of the commoners in cyberspace. I am mostly
interested in exploring how the Creative Commons has galvanized a variety of
interrelated crusades to build a digital republic of, by, and for the
commoners. One reason why a small licensing project has grown into a powerful
global brand is that, at a time of mass-media dominance and political
stalemate, free culture offers an idealistic alternative vision. Something you
can do. A movement in which everyone can play some useful role. The free
culture movement stands for reclaiming culture by making it yourself and for
reviving democracy by starting in your own digital backyard. CC stands for
personal authenticity and diversity in a world of stale, mass-marketed product.
It stands for good fun and the joys of sharing.

Put the CC logo on your blog or music CD or video, and you too can belong to a
movement that slyly sticks it to Big Media without getting into an ugly brawl.
Don't get mad, the CC community seems to whisper. Just affiliate with a growing
virtual nation of creative renegades. Transcend a rigged game by migrating to a
commons of your own making. Build therefore your own world, in the manner of
Henry David Thoreau — then imagine its embrace by many others. Imagine it
radiating into conventional politics with a refreshing ethic of open
accountability and earned rewards, a contempt for coercive business practices
and governmental abuses, and an insistence upon transparency, participation,
and the consent of the governed. You may be an entrepreneur who just wants to
build a profitable business, or a scientist who just wants to find better ways
to research Huntington's disease. The commons has some solutions in these
areas, too. This big-tent movement is unabashedly ecumenical.

This is the vision now exploding around the world anyway. The recurring
question in its earliest days, and now, remains — How can we build it out?
/Can/ it be built out? And how far? For the commoners, just asking the question
is halfway to answering it.


----------------------------------------
PART I
======


----------------------------------------
HARBINGERS OF THE SHARING ECONOMY
=================================


----------------------------------------
[INTRO]
-------

The rise of the sharing economy had its roots among the renegades living on the
periphery of mainstream culture. At the time, they were largely invisible to
one another. They had few ways of making common cause and no shared language
for even naming the forces that troubled them. It was the 1990s, after all, a
time of alluring mercantile fantasies about the limitless possibilities of the
laissez-faire “information superhighway.” Even for those who could pierce
the mystifications, the new technologies were so new, powerful, and perplexing
that it was difficult to understand their full implications.

The renegades, while sharing a vision of technological progress, were disturbed
by many on-the-ground realities. A small network of hackers, for example, was
enraged to learn that software was becoming a closed, proprietary product.
Companies could prohibit interested individuals from tinkering with their own,
legally purchased software. On both creative and political grounds, this
development was odious to Richard Stallman, a brilliant programmer who soon
hatched a dream of building a protected kingdom of “free software,” the
subject of chapter 1.

Meanwhile, a loose community of legal scholars and tech activists was becoming
alarmed by the antisocial, anti-democratic tendencies of copyright law and
digital technology. Scholars such as Lawrence Lessig, James Boyle, and Hal
Abelson began to realize that copyright law and software code were acquiring
unsuspected powers to redesign our political and social order. They also began
to understand the ways in which the public domain is not a wasteland, as
conventional minds had long supposed, but a highly generative zone of culture.
This intellectual journey is described in chapter 2.

Finally, it was becoming painfully apparent to yet another amorphous band of
renegades — artists, musicians, writers, scientists, educators, citizens —
that copyright law and technological controls were artificially restricting
their creative freedoms. With scant public attention, the music, film, and
publishing industries were using their clout to protect their archaic business
models at the expense of innovation and the commons. This onslaught ultimately
provoked one exemplary commoner, Eric Eldred, to team up with legal scholar
Lawrence Lessig to mount an unprecedented constitutional challenge to copyright
law, the focus of chapter 3.

None of these surges of innovative dissent was well funded or particularly
promising. For the most part, they were improvisational experiments undertaken
by public-spirited individuals determined to vindicate their visions for a
better society. With the benefit of hindsight, we can now see that while many
of these initiatives were only partially successful, each was indispensable to
the larger, later task of imagining and building a digital republic to secure
basic human freedoms, the subject of Part II.


----------------------------------------
1 IN THE BEGINNING WAS FREE SOFTWARE
------------------------------------

/Richard Stallman's mythic struggle to protect the commons of code set the
viral spiral in motion./

The struggle to imagine and invent the software commons, which later set in
motion a viral spiral now known as free culture, began with Richard Stallman, a
brilliant, eccentric MIT computer programmer. Stallman's history as a hacker
and legal innovator has by now become the stuff of legend. As one of the first
people to confront the deep tensions between proprietary control and the public
domain in software development, Stallman has achieved that rare pinnacle in the
high-tech world, the status of celebrity geek. Besides his programming prowess,
he is renowned for devising the GNU General Public License, more commonly known
as the GPL, an ingenious legal mechanism to protect shared software code.

Stallman — or RMS, as he likes to be called — has become an iconic figure
in the history of free culture in part because he showed courageous leadership
in protecting the commons well before anyone else realized that there was even
a serious problem. He was a lone voice in the wilderness for at least ten years
before the Internet became a mass medium, and so has earned enormous
credibility as a leader on matters of free culture. He has also been reviled by
some as an autocratic zealot with bad manners and strident rhetoric.

It is perhaps fitting that Stallman could be mistaken for an Old Testament
prophet. He is a shaggy, intense, and fiercely stubborn guy. On his Web site,
visitors can find a gag photo of him posed as Saint IGNUcius, with his hand
raised in mock genuflection and his head encircled by a gold aureole (held in
place by two admiring acoyltes). He has been known to deliver lectures
barefoot, sleep on the couch in a borrowed office for weeks at a time, and
excoriate admirers for using taboo phrases like “intellectual property” and
“copyright protection.” Stallman explains that “intellectual property”
incorrectly conflates three distinct bodies of law — copyright, patent, and
trademark — and emphasizes individual property rights over public rights.
“Copyright protection” is misleading, he says, because it implies a
positive, necessary act of /defending/ something rather than an acquisitive,
aggressive act of a monopolist. Stallman considers /content/ to be a
disparaging word, better replaced by “works of authorship.” He has even
made a list of fourteen words that he urges people to avoid because of their
politically misleading valences.[^21]

Even though Stallman frequently speaks to august academic and scientific
gatherings, and meets with the heads of state in developing countries, he
resembles a defiant hippie, Yet for his visionary role in developing free
software and the free software philosophy, Stallman is treated as if he were a
head of state . . . which, in a way, he is. His story has irresistible
mythological resonances — the hero's journey through hardship and scorn,
later vindicated by triumph and acclaim. But for many, including his most
ardent admirers, Stallman's stubborn idealism can also be supremely maddening.

His first encounter with the creeping ethic of proprietary control, in the late
1970s, is an oft-told part of his story. The Xerox Corporation had donated an
experimental laser printer to the MIT Artificial Intelligence Lab, where
Stallman was then a graduate student. The printer was constantly jamming,
causing frustration and wasting everyone's time. Stallman wanted to devise a
software fix but he discovered that the source code was proprietary. Determined
to find out who was responsible and force them to fix it, he tracked down a
computer scientist at Carnegie Mellon University who had supposedly written the
code — but the professor refused to help him; he had signed a nondisclosure
agreement with Xerox prohibiting him from sharing the code.

Stallman considered Xerox's lockup of code a profound moral offense that
violated the integrity of the hacker community. (Among practitioners, /hacker/
is a term of respect for an ingenious, resourceful programmer, not an
accusation of criminality.) Not only did it prevent people from fixing their
own equipment and software, the nondisclosure agreement flouted the Golden
Rule. It prohibited sharing with one's neighbor. The proprietary ethic was not
just immoral, by Stallman's lights, but a barrier to developing great software.

By the late 1970s, he had developed a breakthrough text editor, Emacs, in
collaboration with a large community of programmers. “Everybody and his
brother was writing his own collection of redefined screen-editor commands, a
command for everything he typically liked to do,” Stallman wrote. “People
would pass them around and improve them, making them more powerful and more
general. The collections of redefinitions gradually became system programs in
their own right.”[^22] Emacs was one of the first software projects to
demonstrate the feasibility of large-scale software collaboration and the deep
well of innovative ideas that it could yield. Emacs enabled programmers to add
new features with great ease, and to constantly upgrade and customize the
program with the latest improvements. The Emacs experiment demonstrated that
/sharing/ and /interoperability/ are vital principles for a flourishing online
commons.

Two problems quickly emerged, however. If people did not communicate their
innovations back to the group, divergent streams of incompatible code would
produce a Tower of Babel effect. Second, if the code and its derivations were
not shared with everyone, the usefulness of the program would slowly decline.
The flow of innovation would dissipate.

To solve these problems, Stallman invented a user contract that he called the
“Emacs Commune.” It declared to all users that Emacs was “distributed on
a basis of communal sharing, which means that all improvements must be given
back to me to be incorporated and distributed.” He enforced the provisions of
the contract with an iron hand. As Stallman biographer Sam Williams writes,
when the administrators for the MIT Laboratory for Computer Science instituted
a new password system — which Stallman considered an antisocial power grab
— he “initiated a software ‘strike,' refusing to send lab members the
latest version of Emacs until they rejected the security system on the lab's
computers. The move did little to improve Stallman's growing reputation as an
extremist, but it got the point across: commune members were expected to speak
up for basic hacker values.”

Stallman was groping for a way to sustain the hacker ethic of community and
sharing in the face of new types of top-down control. Some programmers were
beginning to install code that would turn off access to a program unless money
was paid. Others were copyrighting programs that had been developed by the
community of programmers. Bill Gates, as an undergraduate at Harvard in the
late 1970s, was nearly expelled for using publicly funded labs to create
commercial software. He was forced to put his code into the public domain,
whereupon he left the university to found an obscure Albuquerque company called
Micro-Soft.

Software was simply becoming too lucrative for it to remain a shared resource
— an attitude that enraged Stallman. He was determined to preserve the
integrity of what we would now call the software commons. It was an immense
challenge because copyright law makes no provisions for community ownership of
creative work beyond “joint authorship” among named individuals. Stallman
wanted to devise a way to ensure that all the talent and innovation created by
commoners would /stay/ in the commons. The idea that an outsider — a
university administrator, software entrepreneur, or large company — could
intrude upon a hacker community and take its work was an appalling injustice to
Stallman.

Yet this was precisely what was happening to the hacker community at MIT's AI
Lab in the early 1980s. It was slowly disintegrating as one programmer after
another trooped off to join commercial software ventures; the software itself
was becoming annexed into the marketplace. Software for personal computers,
which was just then appearing on the market, was sold as a proprietary product.
This meant that the source code — the deep design architecture of the program
that operated everything — was inaccessible.[^23] Perhaps most disturbing to
Stallman at the time was that the leading mainframe operating system, Unix, was
locking up its source code. Unix had been developed by AT&T with generous
federal funding, and had been generally available for free within academic
computing circles. At the time, most mainframe software was given away to
encourage buyers to purchase the computer hardware. But when the Department of
Justice broke up AT&T in 1984 to spur competition, it also enabled AT&T to
enter other lines of business. Naturally, the company was eager to maximize its
profits, so in 1985 it began to charge a licensing fee for Unix.

Stallman grieved at the disintegration of the hacker community at the AI Lab as
closed software programs inexorably became the norm. As he wrote at the time:

  The people remaining at the lab were the professors, students, and non-hacker
  researchers, who did not know how to maintain the system, or the hardware, or
  want to know. Machines began to break and never be fixed; sometimes they just
  got thrown out. Needed changes in software could not be made. The non-hackers
  reacted to this by turning to commercial systems, bringing with them fascism
  and license agreements. I used to wander through the lab, through the rooms
  so empty at night where they used to be full, and think, “Oh my poor AI
  lab! You are dying and I can't save you.”

Stallman compared himself to Ishi, “the last survivor of a dead [Native
American] culture. And I don't really belong in the world anymore. And in some
ways I feel I ought to be dead.”

Stallman decided to leave MIT — why stay? — but with a brash plan: to
develop a free software operating system that would be compatible with Unix. It
would be his brave, determined effort to preserve the hacker ethic. He dubbed
his initiative the GNU Project, with “GNU” standing for “GNU's Not
Unix” — a recursive hacker's pun. He also started, in 1985, the Free
Software Foundation to help develop GNU software projects and distribute them
for free to anyone. (The foundation now occupies a fifth-floor office on a
narrow commercial street in downtown Boston.)

The Emacs Commune experience had taught Stallman about the limits of informal
social norms in protecting the software commons. It also revealed the
difficulties of being the central coordinator of all code changes. This time,
in developing a set of software programs for his GNU Project, Stallman came up
with a better idea — a legally enforceable license. The goal was to ensure
that people could have free access to all derivative works and share and reuse
software. The licensing rights were based on the rights of ownership conferred
by copyright law.

Stallman called his license the GNU General Public License, or GPL. He
puckishly referred to it as “copyleft,” and illustrated it with a reverse
copyright symbol (a backward c in a circle). Just as programmers pride
themselves on coming up with ingenious hacks to solve a software problem, so
the GPL is regarded as a world-class hack around copyright law. Copyright law
has no provisions for protecting works developed by a large community of
creators. Nor does it offer a way to prevent works from being made proprietary.
Indeed, that's the point of copyright law — to create private property
rights.

The GPL bypasses these structural limitations of copyright law by carving out a
new zone of collective ownership. A work licensed under the GPL permits users
to run any program, copy it, modify it, and distribute it in any modified form.
The only limitation is that any derivative work must also be licensed under the
GPL. This provision of the GPL means that the license is /automatically/
applied to any derivative work, and to any derivative of a derivative, and so
on — hence its viral nature.[^*1] The GPL ensures that the value created by a
given group of commoners shall stay within the commons. To guarantee the viral
power of the license, users of GPL'd works cannot modify the licensing terms.
No one has to pay to use a GPL'd work — but as a condition for using it,
people are legally obliged to license any derivative versions under the GPL. In
this way, a GPL'd work is born and forever protected as “shareable.”

Version 1.0 of the GPL was first published in 1989. It was significant, writes
Sam Williams, because it “demonstrated the intellectual similarity between
legal code and software code. Implicit within the GPL's preamble was a profound
message: instead of viewing copyright law with suspicion, hackers should view
it as yet another system begging to be hacked.”[^24] The GPL also served to
articulate, as a matter of law, the value of collaborative work. A universe of
code that might previously have been regarded as part of the “public
domain” — subject to free and unrestricted access — could now be seen in
a subtly different light.

A GPL'd work is not part of the public domain, because the public domain has no
rules constraining how a work may be used. Works in the public domain are open
to anyone. The GPL is similar, but with one very important restriction: no
private appropriation is allowed. Any follow-on uses must remain free for
others to use (a provision that some property rights libertarians regard as
“coercive”). Works in the public domain, by contrast, are vulnerable to
privatization because someone need only add a smidgen of “originality” to
the work and she would own a copyright in the resulting work. A GPL'd work and
its derivatives stay free forever — because anyone who tries to privatize a
GPL'd work is infringing on the license.

For Stallman, the GPL became the symbol and tool for enacting his distinct
political vision of “freedom.” The license rests on four kinds of freedoms
for users of software (which he lists using computer protocols):

  Freedom 0: The freedom to run the program for any purpose;

  Freedom 1: The freedom to study how the program works, and to adapt it to
  your needs. (Access to the source code is a precondition for this);

  Freedom 2: The freedom to redistribute copies so you can help your neighbor;
  and

  Freedom 3: The freedom to improve the program, and release your improvements
  to the public, so that the whole community benefits. (Access to the source
  code is a precondition for this.)

Stallman has become an evangelist for the idea of freedom embodied in all the
GNU programs. He refuses to use any software programs that are not “free,”
and he has refused to allow his appearances to be Webcast if the software being
used was not “free.” “If I am to be an honest advocate for free
software,” said Stallman, “I can hardly go around giving speeches, then put
pressure on people to use nonfree software. I'd be undermining my own cause.
And if I don't show that I take my principles seriously, I can't expect anybody
else to take them seriously.”[^25]

Stallman has no problems with people making money off software. He just wants
to guarantee that a person can legally use, copy, modify, and distribute the
source code. There is thus an important distinction between software that is
commercial (possibly free) and software that is proprietary (never free).
Stallman tries to explain the distinction in a catchphrase that has become
something of a mantra in free software circles: /“free as in ‘free speech,'
not as in ‘free beer.'”/ The point is that code must be freely accessible,
not that it should be free of charge. (This is why “freeware” is not the
same as free software. Freeware may be free of charge, but it does not
necessarily make its source code accessible.)

Eben Moglen, a professor of law at Columbia University and general counsel for
the Free Software Foundation since 1994, calls the provisions of the GPL
“elegant and simple. They respond to the proposition that when the marginal
cost of goods is zero, any nonzero cost of barbed wire is too high. That's a
fact about the twentyfirst century, and everybody had better get used to it.
Yet as you know, there are enormous cultural enterprises profoundly committed
to the proposition that more and more barbed wire is necessary. And their basic
strategy is to get that barbed wire paid for by the public everywhere.”[^26]

The GPL truly was something new under the sun: a legally enforceable tool to
vouchsafe a commons of software code. The license is based on copyright law yet
it cleverly turns copyright law against itself, limiting its reach and carving
out a legally protected zone to build and protect the public domain. In the
larger scheme of things, the GPL was an outgrowth of the “gift economy”
ethic that has governed academic life for centuries and computer science for
decades. What made the GPL different from these (abridgeable) social norms was
its legal enforceability.

The GPL might well have remained an interesting but arcane curiosity of the
software world but for two related developments: the rise of the Internet in
the 1990s and software's growing role as core infrastructure in modern society.
As the computer and Internet revolutions have transformed countless aspects of
daily life, it has become evident that software is not just another product.
Its design architecture is seminally important to our civic freedoms and
democratic culture. Or as Lawrence Lessig famously put it in his 1999 book
/Code/, “code is law.” Software can affect how a business can function, how
information is organized and presented, and how individuals can think, connect
with one another, and collaborate. Code invisibly structures people's
relationships, and thus serves as a kind of digital constitutional order. As an
economic force, software has become as critical as steel or transportation in
previous eras: a building block for the basic activities of the economy,
businesses, households, and personal life.

Stallman's atavistic zeal to preserve the hacker community, embodied in the
GPL, did not immediately inspire others. In fact, most of the tech world was
focused on how to convert software into a marketable product. Initially, the
GPL functioned like a spore lying dormant, waiting until a more hospitable
climate could activate its full potential. Outside of the tech world, few
people knew about the GPL, or cared.[^*2] And even most techies were oblivious
to the political implications of free software.

Working under the banner of the Free Software Foundation, Stallman continued
through the 1980s and 1990s to write a wide number of programs needed to build
a completely free operating system. But just as Lennon's music was better after
finding McCartney, Stallman's free software needed to find Linus Torvalds's
kernel for a Unix-like operating system. (A kernel is the core element of an
operating system that controls how the various applications and utilities that
comprise the system will run.)

In 1991, Torvalds was a twenty-one-year-old computer science student at the
University of Helsinki, in Finland. Frustrated by the expense and complexity of
Unix, and its inability to work on personal computers, Torvalds set out to
build a Unix-like operating system on his IBM AT, which had a 33-megahertz
processor and four megabytes of memory. Torvalds released a primitive version
of his program to an online newsgroup and was astonished when a hundred hackers
responded within a few months to offer suggestions and additions. Over the next
few years, hundreds of additional programmers joined the project, which he
named “Linux” by combining his first name, “Linus,” with “Unix.”
The first official release of his program came in 1994.[^27]

The Linux kernel, when combined with the GNU programs developed by Stallman and
his free software colleagues, constituted a complete computer operating system
— an astonishing and unexpected achievement. Even wizened computer scientists
could hardly believe that something as complex as an operating system could be
developed by thousands of strangers dispersed around the globe, cooperating via
the Internet. Everyone assumed that a software program had to be organized by a
fairly small group of leaders actively supervising the work of subordinates
through a hierarchical authority system — that is, by a single corporation.
Yet here was a virtual community of hackers, with no payroll or corporate
structure, coming together in a loose, voluntary, quasi-egalitarian way, led by
leaders who had earned the trust and respect of some highly talented
programmers.

The real innovation of Linux, writes Eric S. Raymond, a leading analyst of the
technology, was “not technical, but sociological”:

  Linux was rather casually hacked on by huge numbers of volunteers
  coordinating only through the Internet. Quality was maintained not by rigid
  standards or autocracy but by the naively simple strategy of releasing every
  week and getting feedback from hundreds of users within days, creating a sort
  of rapid Darwinian selection on the mutations introduced by developers. To
  the amazement of almost everyone, this worked quite well.[^28]

The Free Software Foundation had a nominal project to develop a kernel, but it
was not progressing very quickly. The Linux kernel, while primitive, “was
running and ready for experimentation,” writes Steven Weber in his book /The
Success of Open Source/: “Its crude functionality was interesting enough to
make people believe that it could, with work, evolve into something important.
That promise was critical and drove the broader development process from early
on.”[^29]

There were other powerful forces driving the development of Linux. Throughout
the 1990s, Microsoft continued to leverage its monopoly grip over the operating
system of personal computers, eventually attracting the attention of the U.S.
Department of Justice, which filed an antitrust lawsuit against the company.
Software competitors such as Hewlett-Packard, Sun Microsystems, and IBM found
that rallying behind an open-source alternative — one that was legally
protected against being taken private by anyone else— offered a terrific way
to compete against Microsoft.

Meanwhile, the once-free Unix software program was becoming a fragmented mess.
So many different versions of Unix were being sold that users were frustrated
by the proliferation of incompatible proprietary versions. In the words of a
Sun Microsystems executive at the time, users were unhappy with the
“duplication of effort around different implementations, leading to high
prices; poor compatibility; and worst of all, slower development as each
separate Unix vendor had to solve the same kinds of problems independently.
Unix has become stagnant. . . .”[^30]

Given these problems, there was great appeal in a Unix-like operating system
with freely available source code. Linux helped address the fragmentation of
Unix implementations and the difficulties of competing against the Microsoft
monopoly. Knowing that Linux was GPL'd, hackers, academics, and software
companies could all contribute to its development without fear that someone
might take it private, squander their contributions, or use it in hostile ways.
A commons of software code offered a highly pragmatic solution to a market
dysfunction.

Stallman's GNU Project and Torvalds's Linux software were clearly synergistic,
but they represented very different styles. The GNU Project was a slower, more
centrally run project compared to the “release early and often”
developmental approach used by the Linux community. In addition, Stallman and
Torvalds had temperamental and leadership differences. Stallman has tended to
be more overbearing and directive than Torvalds, who does not bring a political
analysis to the table and is said to be more tolerant of diverse talents.[^31]

So despite their natural affinities, the Free Software Community and the Linux
community never found their way to a grand merger. Stallman has applauded
Linux's success, but he has also resented the eclipse of GNU programs used in
the operating system by the Linux name. This prompted Stallman to rechristen
the program “GNU/Linux,” a formulation that many people now choose to
honor.

Yet many hackers, annoyed at Stallman's political crusades and crusty personal
style, committed their own linguistic raid by renaming “free software” as
“open source software,” with a twist. As GNU/Linux became more widely used
in the 1990s, and more corporations began to seriously consider using it, the
word /free/ in “free software” was increasingly seen as a problem. The
“free as in free speech, not as in free beer” slogan never quite dispelled
popular misconceptions about the intended sense of the word /free/. Corporate
information technology (IT) managers were highly wary about putting
mission-critical corporate systems in the hands of software that could be had
for /free/. Imagine telling the boss that you put the company's fate in the
hands of a program you downloaded from the Internet for free!

Many corporate executives clearly recognized the practical value of free
software; they just had no interest in joining Stallman's ideological crusade
or being publicly associated with him. They did not necessarily want to become
champions of the “four freedoms” or the political vision implicit in free
software. They simply wanted code that works well. As Eric Raymond wrote: “It
seemed clear to us in retrospect that the term ‘free software' had done our
movement tremendous damage over the years. Part of this stemmed from the
well-known ‘free speech/free beer' ambiguity. Most of it came from something
worse — the strong association of the term ‘free software' with hostility
to intellectual property rights, communism, and other ideas hardly likely to
endear themselves to an MIS [management information systems] manager.”[^32]

One response to this issue was the rebranding of free software as
“open-source” software. A number of leading free software programmers, most
notably Bruce Perens, launched an initiative to set forth a consensus
definition of software that would be called “opensource.” At the time,
Perens was deeply involved with a community of hackers in developing a version
of Linux known as the Debian GNU/Linux distribution. Perens and other leading
hackers not only wanted to shed the off-putting political dimensions of “free
software,” they wanted to help people deal with the confusing proliferation
of licenses. A lot of software claimed to be free, but who could really tell
what that meant when the terms were so complicated and legalistic?

The Open Source Initiative, begun in 1998, helped solve this problem by
enumerating criteria that it considered significant in judging a program to be
“open.”[^33] Its criteria, drawn from the Debian community, helped
standardize and stabilize the definition of open-source software. Unlike the
GPL, permissive software licenses such as BSD and MIT /allow/ a program to be
freely copied, modified, and distributed but don't /require/ it. A programmer
can choose to make a proprietary derivative without violating the license.

The Open Source Initiative has focused more on the practical, technical merits
of software than on the moral or political concerns that have consumed
Stallman. Free software, as Stallman conceived it, is about building a cohesive
moral community of programmers dedicated to “freedom.” The backers of
open-source software are not necessarily hostile to those ideals but are more
interested in building reliable, marketable software and improving business
performance. As Elliot Maxwell described the free software/open source schism:

  [S]upporters of the Open Source Initiative were willing to acknowledge a role
  for proprietary software and unwilling to ban any link between open-source
  software and proprietary software. Richard Stallman aptly characterized the
  differences: “We disagree on the basic principles but agree more or less on
  the practical recommendations. So we can and do work together on many
  specific projects.”[^34]

The philosophical rift between free software and open-source software amounts
to a “friendly schism,” a set of divergent approaches that has been bridged
in some respects by language.[^35] Observers often use the acronym FOSS to
refer to both free software and open-source software, or sometimes FLOSS —
the L stands for the French word /libre/, which avoids the double meaning of
the English word /free/. Whatever term is used, free and open-source software
has become a critical tool for making online marketplaces more competitive, and
for creating open, accessible spaces for experimentation. In his classic essay,
“The Cathedral and the Bazaar,” Eric Raymond explains how the licenses help
elicit important noneconomic, personal energies:

  The Linux world behaves in many respects like a free market or an ecology, a
  collection of selfish agents attempting to maximize utility which in the
  process produces a selfcorrecting spontaneous order more elaborate and
  efficient than any amount of central planning could have achieved. . . . The
  utility function Linux hackers are maximizing is not classically economic,
  but is the intangible of their own ego satisfaction and reputation among
  other hackers.[^36]

It turns out that an accessible collaborative process, FOSS, can elicit
passions and creativity that entrenched markets often cannot. In this respect,
FOSS is more than a type of freely usable software; it reunites two vectors of
human behavior that economists have long considered separate, and points to the
need for new, more integrated theories of economic and social behavior.

FOSS represents a new breed of “social production,” one that draws upon
social energies that neoclassical economists have long discounted or ignored.
It mobilizes the personal passions and moral idealism of individuals, going
beyond the overt economic incentives that economists consider indispensable to
wealth creation. The eighteenth-century economist Adam Smith would be pleased.
He realized, in his 1776 book /The Wealth of Nations/, that people are
naturally given to “truck, barter and exchange” — but he also recognized,
in his earlier /The Theory of Moral Sentiments/, written in 1759, that people
are motivated by deep impulses of human sympathy and morality. Neoclassical
economists have long segregated these as two divergent classes of human
behavior, regarding altruism and social sympathies as subordinate to the
rational, utility-maximizing, selfserving behavior. FOSS embodies a new
synthesis — and a challenge to economists to rethink their crude model of
human behavior, /Homo economicus/. Free software may have started as mere
software, but it has become an existence proof that individual and collective
goals, and the marketplace and the commons, are not such distinct arenas.[^37]
They are tightly intertwined, but in ways we do not fully understand. This is a
golden thread that will reappear in later chapters.

Red Hat, a company founded in 1993 by Robert Young, was the first to recognize
the potential of selling a custom version (or “distribution”) of GNU/Linux
as a branded product, along with technical support. A few years later, IBM
became one of the first large corporations to recognize the social realities of
GNU/Linux and its larger strategic and competitive implications in the
networked environment. In 1998 IBM presciently saw that the new software
development ecosystem was becoming far too variegated and robust for any single
company to dominate. It understood that its proprietary mainframe software
could not dominate the burgeoning, diversified Internet-driven marketplace, and
so the company adopted the open-source Apache Web server program in its new
line of WebSphere business software.

It was a daring move that began to bring the corporate and open-source worlds
closer together. Two years later, in 2000, IBM announced that it would spend $1
billion to help develop GNU/Linux for its customer base. IBM shrewdly realized
that its customers wanted to slash costs, overcome system incompatibilities,
and avoid expensive technology “lock-ins” to single vendors. GNU/Linux
filled this need well. IBM also realized that GNU/Linux could help it compete
against Microsoft. By assigning its property rights to the commons, IBM could
eliminate expensive property rights litigation, entice other companies to help
it improve the code (they could be confident that IBM could not take the code
private), and unleash a worldwide torrent of creative energy focused on
GNU/Linux. Way ahead of the curve, IBM decided to reposition itself for the
emerging networked marketplace by making money through tech service and
support, rather than through proprietary software alone.[^38]

It was not long before other large tech companies realized the benefits of
going open source. Amazon and eBay both saw that they could not affordably
expand their large computer infrastructures without converting to GNU/Linux.
GNU/Linux is now used in everything from Motorola cell phones to NASA
supercomputers to laptop computers. In 2005, /BusinessWeek/ magazine wrote,
“Linux may bring about the greatest power shift in the computer industry
since the birth of the PC, because it lets companies replace expensive
proprietary systems with cheap commodity servers.”[^39] As many as one-third
of the programmers working on open-source projects are corporate employees,
according to a 2002 survey.[^40]

With faster computing speeds and cost savings of 50 percent or more on hardware
and 20 percent on software, GNU/Linux has demonstrated the value proposition of
the commons. Open source demonstrated that it can be cheaper and more
efficacious to collaborate in the production of a shared resource based on
common standards than to strictly buy and own it as private property.

But how does open source work without a conventional market apparatus? The past
few years have seen a proliferation of sociological and economic theories about
how open-source communities create value. One formulation, by Rishab Ghosh,
compares free software development to a “cooking pot,” in which you can
give a little to the pot yet take a lot — with no one else being the poorer.
“Value” is not measured economically at the point of transaction, as in a
market, but in the nonmonetary /flow/ of value that a project elicits (via
volunteers) and generates (through shared software).[^41] Another important
formulation, which we will revisit later, comes from Harvard law professor
Yochai Benkler, who has written that the Internet makes it cheap and easy to
access expertise anywhere on the network, rendering conventional forms of
corporate organization costly and cumbersome for many functions. Communities
based on social trust and reciprocity are capable of mobilizing creativity and
commitment in ways that market incentives often cannot — and this can have
profound economic implications.[^42] Benkler's analysis helps explain how a
global corps of volunteers could create an operating system that, in many
respects, outperforms software created by a well-paid army of Microsoft
employees.

A funny thing happened to free and open-source software as it matured. It
became hip. It acquired a cultural cachet that extends well beyond the
cloistered precincts of computing. “Open source” has become a universal
signifier for any activity that is participatory, collaborative, democratic,
and accountable. Innovators within filmmaking, politics, education, biological
research, and drug development, among other fields, have embraced the term to
describe their own attempts to transform hidebound, hierarchical systems into
open, accessible, and distributed meritocracies. Open source has become so much
of a cultural meme — a self-replicating symbol and idea — that when the
Bikram yoga franchise sought to shut down unlicensed uses of its yoga
techniques, dissident yoga teachers organized themselves into a nonprofit that
they called Open Source Yoga Unity. To tweak the supremacy of Coca-Cola and
Pepsi, culture jammers even developed nonproprietary recipes for a cola drink
and beer called “open source cola” and “open source beer.”[^43]

Stallman's radical acts of dissent in the 1980s, regarded with bemusement and
incredulity at the time, have become, twenty-five years later, a widely
embraced ideal. Small-/{d}/ democrats everywhere invoke open source to lambaste
closed and corrupt political systems and to express their aspirations for
political transcendence. People invoke open source to express a vision of life
free from overcommercialization and corporate manipulation. The term enables
one to champion bracing democratic ideals without seeming naïve or flaky
because, after all, free software is solid stuff. Moreover, despite its image
as the software of choice for granola-loving hippies, free and open-source
software is entirely compatible with the commercial marketplace. How suspect
can open source be when it has been embraced by the likes of IBM,
Hewlett-Packard, and Sun Microsystems?

The appeal of “openness” has become so great that it is sometimes difficult
to recognize that /limits/ on openness are not only necessary but desirable.
The dark side of openness is the spam that clogs the Internet, the ability to
commit fraud and identity theft, and the opportunities for disturbed adults to
prey sexually upon children. Still, the virtues of an open environment are
undeniable; what is more difficult is negotiating the proper levels of openness
for a given realm of online life.

Nearly twenty years after the introduction of the GPL, free software has
expanded phenomenally. It has given rise to countless FOSS software
applications, many of which are major viral hits such as Thunderbird (e-mail),
Firefox (Web browser), Ubuntu (desktop GNU/Linux), and Asterisk (Internet
telephony). FOSS has set in motion, directly or indirectly, some powerful viral
spirals such as the Creative Commons licenses, the iCommons/free culture
movement, the Science Commons project, the open educational resource movement,
and a new breed of open-business ventures, Yet Richard Stallman sees little
connection between these various “open” movements and free software; he
regards “open” projects as too vaguely defined to guarantee that their work
is truly “free” in the free software sense of the term. “Openness and
freedom are not the same thing,” said Stallman, who takes pains to
differentiate free software from open-source software, emphasizing the
political freedoms that lie at the heart of the former.[^44]

Any revolution is not just about new tools and social practices, however. It is
also about developing new ways of understanding the world. People must begin to
/see/ things in a new perspective and /talk/ with a new vocabulary. In the
1990s, as Disney, Time Warner, Viacom, and other media giants realized how
disruptive the Internet might be, the public was generally oblivious that it
might have a direct stake in the outcome of Internet and copyright policy
battles. Big Media was flexing its muscles to institute all sorts of
self-serving, protectionist fixes — copy-protection technologies, broader
copyright privileges, one-sided software and Web licenses, and much more —
and most public-interest groups and civic organizations were nowhere to be
seen.

Fortunately, a small but fierce and keenly intelligent corps of progressive
copyright scholars were beginning to discover one another in the 1990s. Just as
the hacker community had had to recognize the enclosure of its commons of
software code, and embrace the GPL and other licenses as defensive remedies, so
progressive copyright scholars and tech activists were grappling with how to
defend against a related set of enclosures, The relentless expansion of
copyright law was eroding huge swaths of the public domain and fair use
doctrine. Tackling this problem required asking a question that few in the
legal or political establishments considered worth anyone's time — namely,
What's so valuable about the public domain, anyway?


----------------------------------------
2 THE DISCOVERY OF THE PUBLIC DOMAIN
------------------------------------

/How a band of irregulars demonstrated that the public domain is enormously
valuable after all./

For decades, the public domain was regarded as something of a wasteland, a
place where old books, faded posters, loopy music from the early twentieth
century, and boring government reports go to die. It was a dump on the
outskirts of respectable culture. If anything in the public domain had any
value, someone would sell it for money. Or so goes the customary conception of
the public domain.

Jack Valenti, the longtime head of the Motion Picture Association of America,
once put it this way: “A public domain work is an orphan. No one is
responsible for its life. But everyone exploits its use, until that time
certain when it becomes soiled and haggard, barren of its previous virtues.
Who, then, will invest the funds to renovate and nourish its future life when
no one owns it?”[^45] (Valenti was arguing that longer copyright terms would
give film studios the incentive to digitize old celluloid films that would
otherwise enter the public domain and physically disintegrate.)

One of the great, unexplained mysteries of copyright law is how a raffish
beggar grew up to be King Midas. How did a virtually ignored realm of culture
— little studied and undertheorized— become a subject of intense scholarly
interest and great practical importance to commoners and businesses alike? How
did the actual value of the public domain become known? The idea that the
public domain might be valuable in its own right — and therefore be worth
protecting — was a fringe idea in the 1990s and before. So how did a
transformation of legal and cultural meaning occur?

Unlike Richard Stallman's crusade to create a sustainable public domain of
code,[^*3] the discovery of the public domain for cultural works was not led by
a single protagonist or group. It emerged over time through a loose network of
legal scholars, techies, activists, and some businesses, who were increasingly
concerned about worrisome expansions of copyright and patent law. Slowly, a
conversation that was occurring in a variety of academic and tech communities
began to intensify, and then coalesce into a more coherent story.

Scholarship about copyright law is not exactly gripping stuff. But it has
played an important role in the viral spiral. Before anyone could begin to
imagine how an online commons could be structured and protected, someone needed
to explain how intellectual property law had become “uncontrolled to the
point of recklessness” — as law professor David Lange put it in 1981, well
before the proprietarian explosion of the late 1980s and 1990s.

Fortunately, a new breed of public-spirited professors was reaching a critical
mass just as the Internet was becoming culturally important. These professors,
collaborating with programmers and activists, were among the first to
understand the ways in which copyright law, historically an arcane backwater of
law, was starting to pose serious threats to democracy-loving citizens and
Internet users. The full complexity of this legal literature over the past
generation cannot be unpacked here, but it is important to understand how
progressive copyright scholarship played a critical role in identifying
dangerous trends in law and technology — and in constructing a new narrative
for what copyright law should be.

This legal scholarship reconceptualized the public domain— then a vague
notion of nonproperty — and developed it into an affirmative theory. It gave
the public domain sharper definition and empirical grounding. Thinkers like
Yochai Benkler (Harvard Law School), Lawrence Lessig (Stanford Law), and James
Boyle (Duke Law) developed bracing new theories that recognize the power of
social communities, and not just the individual, in the creative process.
Others, such as Julie Cohen (Georgetown Law Center) and Pamela Samuelson (Boalt
Hall), have respectively explored the need to develop a new social theory of
creative practice[^46] and the theoretical challenges of “mapping” the
public domain.[^47] All of this thinking, mostly confined to scholarly
workshops, law reviews, and tech journals, served as a vital platform for
imagining the commons in general and the Creative Commons in particular.

THE ELUSIVE QUEST FOR “BALANCE”
...................................

Historically, copyright has been regarded as a “bargain” between the public
and authors. The public gives authors a set of monopoly rights to help them
sell their works and earn rewards for their hard work. In return, the public
gets the marketable output of creators— books, films, music — and certain
rights of free access and use. The primary justification of copyright law is
not to protect the fortunes of authors; it is to promote new creative works and
innovation. By giving authors a property right in their works — and so
helping them to sell those works in the marketplace — copyright law aims to
promote the “progress of human knowledge.”

That's the author's side of the bargain. The public's stake is to have certain
limited rights to use copyrighted works. Under the “fair use” doctrine (or
“fair dealing” in some countries), people are entitled to excerpt
copyrighted works for noncommercial purposes such as journalism, scholarship,
reviews, and personal use. People are also entitled to resell the physical
copies of copyrighted works such as books and videos. (This right is granted
under the “first sale doctrine,” which enables libraries and DVD rental
stores to exist.) The public also has the right to use copyrighted works for
free after the term of a copyright has expired — that is, after a work has
“entered the public domain.” This general scheme is said to establish a
balance in copyright law between the private rights of authors and the needs of
the public and future authors.

This “balance” has been more rhetorical than real, however. For decades,
critics have complained that the public's side of the copyright bargain is
being abridged. Content industries have steadily expanded their rights under
copyright law at the expense of the public's modest access rights.

What is notable about the long history of seeking “balance” in copyright
law is the singular failure of critics to make much headway (until recently) in
redressing the problem. The public's interests in copyright law — and those
of authors' — have never been given that much attention or respect. From the
authors of eighteenth-century England, whose formal rights were in practice
controlled by booksellers, to the rhythm-and-blues singers of the 1940s whose
music was exploited for a pittance by record labels, to academics whose
copyrights must often be ceded to commercial journals, authors have generally
gotten the short end of the stick. No surprise here. Business practices and
copyright policy have usually been crafted by the wealthiest, most politically
connected players: book publishers, film studios, record labels, broadcasters,
cable operators, news organizations. The public's lack of organized political
power was reflected in its lack of a coherent language for even describing its
own interests in copyright law.

For most of the twentieth century, the forging of copyright law was essentially
an insider contest among various copyright-dependent industries for market
advantage. Congress hosted a process to oversee the squabbling and negotiation,
and nudged the players now and again. This is what happened in the fifteen-year
run-up to congressional enactment of the Copyright Act of 1976, for example.
For the most part, Congress has preferred to ratify the compromises that
industry players hammer out among themselves. The unorganized public has been
treated as an ignorant bystander.

Naturally, this has strengthened the hand of commercial interests. Copyright
disputes could be argued within a congenial intellectual framework and closely
managed by a priesthood of lawyer-experts, industry lobbyists, and friendly
politicians. The interests of citizens and consumers, blessedly absent from
most debates, could be safely bracketed as marginal.

But letting industries negotiate their own solutions has its own problems, as
Professor Jessica Litman has pointed out: “Each time we rely on current
stakeholders to agree on a statutory scheme, they produce a scheme designed to
protect themselves against the rest of us. Its rigidity leads to its breakdown;
the statute's drafters have incorporated too few general principles to guide
courts in effecting repairs.”[^48] By letting the affected industries
negotiate a series of fact specific solutions, each reflecting that moment in
history, Congress has in effect let copyright law become an agglomeration of
complex and irregular political compromises — or, as some might say, a
philosophically incoherent mess.

Perhaps because it is so attentive to its industry benefactors, Congress has
generally regarded the fair use doctrine and the public domain as a sideshow.
Under the Copyright Act of 1976, for example, fair use is set forth only as an
affirmative defense to accusations of copyright infringement, not as an
affirmative right. Moreover, fair use is defined by four general statutory
guidelines, which courts have proceeded to interpret in wildly inconsistent
ways. In real life, Lawrence Lessig has quipped, fair use amounts to “the
right to hire a lawyer.”

Congress has shown a similarly low regard for the public domain. After
extending the term of copyright law eleven times since 1961, the copyright
monopoly now lasts for an author's lifetime plus seventy years (ninety-five
years for corporations). For Congress, writes Professor Tyler Ochoa,
“allowing works to enter the public domain was something to be condemned, or
at least only grudgingly tolerated, rather than something to be
celebrated.”[^49] Congress's most hostile act toward the public domain —
and to the public's rights of access — was the elimination of the
registration requirement for copyright protection.[^50] Since 1978, copyright
holders have not had to formally register their works in order to receive
protection. Doodle on a scratch pad, record your guitar strumming, and it's
automatically copyrighted.

Sounds great . . . but this provision had especially nasty consequences once
the digital revolution kicked into high gear in the 1990s, because every
digital byte was born, by default, as a form of property. Automatic copyright
protection dramatically reversed the previous default, where most everything
was born in the public domain and was free to use unless registered. Today,
anyone wishing to reuse a work legally has to get permission and possibly pay a
fee. To make matters worse, since there is no longer a central registry of who
owns what copyrighted works, it is often impossible to locate the copyright
holder. Such books, films, and images are known as “orphan works.”

Thirty years ago, the idea of throwing a net of copyright over all information
and culture was not alarming in the least. As Jessica Litman recalled, “When
I started teaching in 1984, we were at what was about to be the crest of a
high-protectionist wave. That is, if you looked at the scholarship being
written then, people were writing about how we should expand copyright
protection, not only to cover useful articles and fashions and semiconductor
chips and computer programs, but also recombinant DNA. The Chicago School of
scholarship was beginning to be quite influential. People were reconceiving
copyright in Chicago Law and Economics terms, and things like fair use were
seen to be ‘free riding.' ”[^51]

Yet the effects of this protectionist surge, at least for the short term, were
muted for a number of reasons. First, corporate lobbying on copyright issues
was extremely low-key. “I started going to congressional hearings in 1986,”
said Litman, “and no one was there. There were no members of Congress; there
was no press. The witnesses would come and they'd talk, and staffers would take
notes. And that would be it.”[^52] The big-ticket lobbying — receptions,
slick reports, legislative junkets, private movie screenings with Jack Valenti
— did not really begin to kick in until the late 1980s and early 1990s, when
trade associations for every conceivable faction stepped up their Washington
advocacy. When the Internet's commercial implications became clear in the
mid-1990s, copyright-dependent industries ratcheted up their campaign
contributions and lobbying to another level entirely.

The protectionist surge in copyright law in the 1980s was mitigated by two
stalwart public servants: Representative Robert Kastenmeier of Wisconsin, the
chair of the House judiciary subcommittee that oversaw copyright legislation,
and Dorothy Schrader, the longtime general counsel of the U.S. Copyright
Office. Both considered it their job to protect the public from grasping
copyright industries. When Kastenmeier lost his reelection bid in 1990 and
Schrader retired in 1994, the film, music, broadcast, cable, and publishing
industries would henceforth have staunch allies— sometimes their former
lawyer-lobbyists — in key congressional staff positions and copyright policy
jobs. Government officials no longer saw their jobs as protecting consumers
from overbearing, revenuehungry media industries, but as helping copyright
owners chase down and prosecute “pirates.” Copyright law was recast as a
form of industrial policy — a way to retain American jobs and improve the
U.S. balance of trade — not as an instrument that affects social equity,
consumer rights, and democratic values.

Ironically, the mercantilist view of copyright was gaining ground at precisely
the time when the public's stake in copyright law was growing. An explosion of
consumer electronics in the 1980s was giving the public new reasons to care
about their fair use rights and the public domain. The introduction of the
videocassette recorder, the proliferation of cable television, personal
computers, software and electronics devices, and then the introduction of the
Web in 1993 all invited people to control their own creative and cultural
lives. The new media meant that the baroque encrustations of copyright law that
had accumulated over decades were now starting to interfere with people's daily
activities.

Yet rather than negotiate a new copyright bargain to take account of the
public's needs and interests, copyright industries stepped up their demands on
Congress to ram through even stronger copyright, trademark, and patent
privileges for themselves. Their basic goal was, and generally remains, a more
perfect control over all downstream uses of works. Content industries generally
do not concede that there is any presumptive “free use zone” of culture,
notwithstanding the existence of the fair use doctrine. Works that citizens may
regard as fair-use entitlements industry often regards as chunks of information
that no one has yet figured out how to turn into marketable property.

Most content industries, then and now, do not see any “imbalance” in
copyright law; they prefer to talk in different terms entirely. They liken
copyrighted works to personal property or real estate, as in “and you
wouldn't steal a CD or use my house without permission, would you?” A
copyrighted work is analogized to a finite physical object, But the essential
point about works in the digital age is that they can't be “used up” in the
same way that physical objects can. They are “nondepletable” and
“nonrival,” as economists put it. A digital work can be reproduced and
shared for virtually nothing, without depriving another person of it.

Nonetheless, a new narrative was being launched — copyrighted works as
property. The idea of copyright law reflecting a policy bargain between the
public and authors/corporations was being supplanted by a new story that casts
copyright as property that is nearly absolute in scope and virtually perpetual
in term. In hindsight, for those scholars who cared enough to see, a
disquieting number of federal court cases were strengthening the hand of
copyright holders at the expense of the public. James Boyle, in a much-cited
essay, called this the “second enclosure movement” — the first one, of
course, being the English enclosure movement of common lands in medieval times
and into the nineteenth century.[^53]

Enclosure took many forms. Copyright scholar Peter Jaszi recalls, “Sometime
in the mid-1980s, the professoriate started getting worried about software
copyright.”[^54] It feared that copyrights for software would squelch
competition and prevent others from using existing code to innovate. This
battle was lost, however. Several years later, the battle entered round two as
copyright scholars and programmers sought to protect reverse-engineering as
fair use. This time, they won.[^55]

Then, in 1985, the U.S. Supreme Court ruled that it was not fair use for the
/Nation/ magazine to excerpt three hundred words from President Ford's
200,000-word memoir. The /Nation/ had acquired a copy of Ford's book before its
publication and published an article of highlights, including a handful of
quotations. The material, derived from Ford's official duties as president, was
of obvious value to the democratic process. But by a 6-3 margin the Court held
that the /Nation/ had violated Ford's copyright.[^56] The proprietary tilt of
copyright law only intensified in the following years. Companies claimed
copyrights for all sorts of dubious forms of “originality” — the page
numbers of federal court decisions, the names and numbers in telephone
directories, and facts compiled in databases.

THE GREAT EXPANSION OF INTELLECTUAL PROPERTY
............................................

These expansions of proprietary control in the 1980s proved to be a prelude to
much more aggressive expansions of copyright, patent, and trademark law in the
1990s. Congress and the courts were granting property rights to all sorts of
things that had previously been considered unowned or unownable. The Supreme
Court had opened this door in 1980 when it recognized the patentability of a
genetically modified bacterium. This led to ethically and economically dubious
patents for genes and life-forms. Then businesses began to win patents for
“business methods” — ideas and theoretical systems — that would
otherwise be in the public domain. Mathematical algorithms, if embedded in
software, could now be owned. Amazon.com's patent on “one-click shopping”
on its Web site became the symbol of this trend. Boat manufacturers won a
special /sui generis/ (“in a class by itself ”) form of protection for the
design of boat hulls in 1998. Celebrities and talent agencies prevailed upon
state legislatures to extend the scope of ownership of celebrity names and
likenesses, which had long been considered in the public domain.

Companies developed still other strategies to assert greater proprietary
control over works. Software companies began to rely upon mass-market licenses
— often referred to as “shrink wrap” contracts and “click-through”
Web agreements — to expand their rights at the expense of consumers and the
public domain. Various computer companies sought to enact a model state law
that, in Samuelson's words, would “give themselves more rights than
intellectual property law would do and avoid the burdens of public interest
limitations.”[^57] Consumers could in effect be forced to surrender their
fair use rights, the right to criticize the product or their right to sue,
because of a “contract” they ostensibly agreed to.

Trademarks, originally designed to help people identify brands and prevent
fraud in the marketplace, acquired a new power in 1995 — the ability to
control public meanings. For years, large corporations had wanted to extend the
scope of their trademark protection to include “dilution” — a fuzzy
concept that would prohibit the use of a trademark without permission, even for
legitimate public commentary or parody, if it “dilutes” the recognized
public associations and meanings of a trademark. For a decade or more,
Kastenmeier had prevented antidilution legislation from moving forward. After
Kastenmeier left Congress, the trademark lobby succeeded in getting Congress to
enact the legislation. This made it much easier for Mattel to threaten people
who did parodies of Barbie dolls. The /Village Voice/ could more credibly
threaten the /Cape Cod Voice/ for trademark infringement. Wal-Mart could
prevent others from using “its” smiley-face logo (itself taken from the
cultural commons).[^58]

The election of Bill Clinton as president in 1992 gave content industries new
opportunities to expand their copyright privileges. The Clinton administration
launched a major policy effort to build what it called the National Information
Infrastructure (NII), more commonly known as the Information Superhighway.
Today, of course, we call it the Internet. A task force of industry
heavyweights was convened to determine what policies should be adopted to help
build the NII.[^59] Vice President Al Gore cast himself as a visionary futurist
and laid out astonishing scenarios for what the NII could deliver: access to
every book in the Library of Congress, the ability of doctors to share medical
information online, new strides against inequality as everyone goes online.

The NII project was a classic case of incumbent industries trying to protect
their profit centers. Executives and lobbyists associated with broadcasting,
film, and music were being asked how to structure the Information Superhighway.
Predictably, they came up with fantasies of digital television with five
hundred channels, programs to sell products, and self-serving scenarios of even
stronger copyright protection and penalties. Few had any inkling of the
transformative power of open networks or the power of the sharing economy —
and if they did, the possibilities certainly were not appealing to them.

One part of the NII campaign was a working group on intellectual property
headed by Bruce Lehman, a former congressional staffer, lobbyist for the
software industry, and commissioner of patents and trademarks. The Lehman panel
spent two years developing a sweeping set of copyright policies for the
Information Superhighway. When the panel's report was released in September
1995, anyone who cared about open culture and democracy was livid. The White
Paper, as it was called, recommended a virtual elimination of fair use rights
in digital content and broader rights over any copyrighted transmissions. It
called for the elimination of first-sale rights for digitally transmitted
documents (which would prevent the sharing of digital files) and endorsed
digital rights management systems for digital works (in order to monitor and
prosecute illegal sharing). The White Paper even sought to reinterpret existing
law so that transient copies in the random-access memory of computers would be
considered illegal unless they had a license — essentially outlawing Web
browsing without a license. With visions of Soviet-style indoctrination, the
document also recommended an ambitious public education program to teach
Americans to properly respect copyright laws.

Litman wrote a revealing history of the misbegotten NII project in her book
/Digital Copyright/. Her chapter title “Copyright Lawyers Set Out to Colonize
Cyberspace” says it all.[^60] Samuelson alerted the readers of /Wired/ about
the outrageous proposals of the White Paper in her devastating January 1996
article “The Copyright Grab.”[^61] If the NII proposals are enacted, warned
Samuelson, “your traditional user rights to browse, share or make private
noncommercial copies of copyrighted works will be rescinded. Not only that,
your online service provider will be forced to snoop through your files, ready
to cut you off and turn you in if it finds any unlicensed material there. The
White Paper regards digital technology as so threatening to the future of the
publishing industry that the public must be stripped of all the rights
copyright law has long recognized — including the rights of privacy. Vice
President Al Gore has promised that the National Information Infrastructure
will dramatically enhance public access to information; now we find out that it
will be available only on a pay-per-use basis.”[^62]

The White Paper was not just an effort by Old Media to domesticate or eliminate
the freedoms emerging on the Information Superhighway; it sought to set the
stage for the internationalization of strict copyright norms, so that
American-style copyright law would prevail around the world. To counter this
effort, American University law professor Peter Jaszi convened a group of law
professors, library organizations, and computer and consumer electronics
makers, who promptly organized themselves as the Digital Future Coalition
(DFC), the first broad-based coalition in support of the public's stake in
copyright law.

The DFC attacked the White Paper as a copyright-maximalist nightmare and sought
to rally civil liberties groups, Internet service providers, and electronics
manufacturers. With modest industry support, the DFC was largely responsible
for slowing progress on legislation that would have enacted Lehman's proposals.
As domestic opposition grew, Lehman shrewdly decided to push for a new global
copyright treaty that would embody similar principles. In the end, however, the
World Intellectual Property Organization demurred.

By that time, however, the terms of debate had been set, and there was serious
congressional momentum to adopt some variant of the White Paper agenda. The
ultimate result, enacted in October 1998, was the Digital Millennium Copyright
Act (DMCA), the crowning achievement of the copyright-maximalist decade. It
contained dozens of highly specific provisos and qualifications to satisfy
every special pleader. The law in effect authorized companies to eliminate the
public's fair use rights in digital content by putting a “digital lock”
around the content, however weak. Circumventing the lock, providing the
software to do so, or even telling someone how to do so became a criminal
offense.

The DMCA has been roundly denounced by software programmers, music fans, and
Internet users for prohibiting them from making personal copies, fair use
excerpts, and doing reverse engineering on software, even with legally
purchased products. Using digital rights management systems sanctioned by the
DMCA, for example, many CDs and DVDs are now coded with geographic codes that
prevent consumers from operating them on devices on other continents. DVDs may
contain code to prevent them from running on Linux-based computers. Digital
journals may “expire” after a given period of time, wiping out library
holdings unless another payment is made. Digital textbooks may go blank at the
end of the school year, preventing their reuse or resale.

Critics also argue that the DMCA gives large corporations a powerful legal tool
to thwart competition and interoperability. Some companies programmed garage
door openers and printer cartridges so that the systems would not accept
generic replacements (until a federal court found this behavior
anticompetitive). Naturally, this sort of behavior, which the DMCA facilitates,
lets companies avoid open competition on open platforms with smaller companies
and entrepreneurs. It also gives companies a legal pretext for bullying Web
site owners into taking down copyrighted materials that may in fact be legal to
use.

In her excellent history of the political run-up to the DMCA, Litman notes,
“There is no overarching vision of the public interest animating the Digital
Millennium Copyright Act. None. Instead, what we have is what a variety of
different private parties were able to extract from each other in the course of
an incredibly complicated four-year multiparty negotiation.”[^63] The DMCA
represents a new frontier of proprietarian control — the sanctioning of
technological locks that can unilaterally override the copyright bargain.
Companies asked themselves, Why rely on copyrights alone when technology can
embed even stricter controls into the very design of products?

The year 1998 was an especially bad year for the public domain. Besides
enacting the trademark dilution bill and DMCA, the Walt Disney Company and
other large media corporations succeeded in their six-year campaign to enact
the Sonny Bono Copyright Term Extension Act.[^64] The legislation, named after
the late House legislator and former husband of the singer Cher, retroactively
extended the terms of existing copyrights by twenty years. As we will see in
chapter 3, this law became the improbable catalyst for a new commons movement.

CONFRONTING THE PROPRIETARIAN JUGGERNAUT
........................................

If there was ever a need for independent scholarship on copyright law and
activism to challenge the new excesses, this was such a time. Fred von Lohmann,
senior staff attorney for the Electronic Frontier Foundation in San Francisco,
recalls, “Peggy Radin taught the first cyber-law class at Stanford Law School
in 1995, and I was her research assistant. And at the end of that semester, I
had read everything that had ever been written about the intersection of the
Internet and the law — not just in the legal literature, but in almost all
the literature. It filled about two boxes, and that was it. That was all there
was.”[^65]

In about a dozen years, those two boxes of literature have grown into many
shelves and countless filing cabinets of case law and commentary. Much of the
legal scholarship was the fruit of a new generation of copyright professors who
rose to the challenge of the time. An earlier generation of copyright scholars
— Melville Nimmer, Alan Latman, Paul Goldstein — were highly respected
titans, but they also enjoyed busy consulting practices with the various
creative industries that they wrote about. Protecting the public domain was not
their foremost concern.

By the 1980s, as law schools become more like graduate schools and less like
professional schools, copyright commentary began to get more scholarly and
independent of the industries it studied. People like Pamela Samuelson, Peter
Jaszi, Jerome H. Reichman, Jessica Litman, L. Ray Patterson, and Wendy Gordon
were among this cohort, who were soon joined in the 1990s by a new wave of
thinkers such as James Boyle, Lawrence Lessig, Julie Cohen, Niva Elkin-Koren,
and Yochai Benkler. Still others, such as Rosemary Coombe and Keith Aoki,
approached copyright issues from cross-cultural and globalization perspectives.
These scholars were frankly hostile to the large copyright industries, and
greatly concerned with how the law was harming democracy, science, culture, and
consumers.

A number of activist voices were also coming forward at this time to challenge
the proprietarian juggernaut. As the Internet became a popular medium, ordinary
people began to realize that the new copyright laws were curtailing their
creative freedoms and free speech rights. The obscure complexities of copyright
law started to become a far more public and political issue. The pioneering
activist organization was the Electronic Frontier Foundation. EFF was founded
in 1990 by tech entrepreneur Mitch Kapor, the famed inventor of the Lotus 1-2-3
spreadsheet in the 1980s; John Perry Barlow, Grateful Dead lyricist and hacker;
and John Gilmore, a leading privacy/cryptography activist and free software
entrepreneur.

The organization was oriented to hackers and cyberlibertarians, who
increasingly realized that they needed an organized presence to defend citizen
freedoms in cyberspace. (Barlow adapted the term /cyberspace/ from
science-fiction writer William Gibson in 1990 and applied it to the
then-unnamed cultural life on the Internet.) Initially, the EFF was concerned
with hacker freedom, individual privacy, and Internet censorship. It later went
through some growing pains as it moved offices, changed directors, and sought
to develop a strategic focus for its advocacy and litigation. In more recent
years, EFF, now based in San Francisco, has become the leading litigator of
copyright, trademark, and Internet free expression issues. It also has more
than ten thousand members and spirited outreach programs to the press and
public.

John Perry Barlow was an important visionary and populizer of the time. His
March 1994 article “The Economy of Ideas” is one of the most prophetic yet
accessible accounts of how the Internet was changing the economics of
information. He astutely realized that information is not a “product” like
most physical property, but rather a social experience or form of life unto
itself. “Information is a verb, not a noun,” he wrote. “Freed of its
containers, information obviously is not a thing. In fact, it is something that
happens in the field of interaction between minds or objects or other pieces of
information. . . . Sharks are said to die of suffocation if they stop swimming,
and the same is nearly true of information.”[^66]

Instead of the sober polemics of law professors, Barlow — a retired Wyoming
cattle rancher who improbably doubled as a tech intellectual and rock hipster
— spiced his analysis of information with colorful metaphors and poetic
aphorisms. Comparing information to DNA helices, Barlow wrote, “Information
replicates into the cracks of possibility, always seeking new opportunities for
/Lebensraum/.” Digital information, he said, “is a continuing process more
like the metaphorphosing tales of prehistory than anything that will fit in
shrink-wrap.”

Since hyperbole is an occupational reflex among cyberjournalists, Barlow's
/Wired/ piece bore the obligatory subtitle, “Everything you know about
intellectual property is wrong.” Yet reading Barlow more than a decade later
confirms that, posturing aside, he /was/ on to the big story of our time:
“Notions of property, value, ownership and the nature of wealth itself are
changing more fundamentally than at any time since the Sumerians first poked
cuneiform into wet clay and called it stored grain. Only a very few people are
aware of the enormity of this shift, and fewer of them are lawyers or public
officials.”[^67]

With a nod to Professor Samuelson, Barlow was prescient enough to compare the
vulnerability of indigenous peoples to the coming dispossession of Internet
communities: “Western countries may legally appropriate the music, designs
and biomedical lore of aboriginal people without compensation to their tribes
of origins since those tribes are not an ‘author' or ‘investors.' But soon
most information will be generated collaboratively by the cyber-tribal
hunter-gatherers of cyberspace. Our arrogant legal dismissal of the rights of
‘primitives' will soon return to haunt us.”

No account of cyberactivism in the 1990s is complete without mention of James
Love, a feisty advocate with a brilliant strategic mind and an extraordinary
ability to open up broad new policy fronts. For example, Love, as director of
the Ralph Nader–founded Consumer Project on Technology, worked with tech
activist Carl Malamud to force the U.S. Securities and Exchange Commission to
put its EDGAR database of corporate filings online in 1994, at a time when the
SEC was planning to give the data to private vendors to sell. By prevailing at
the SEC, Love and Malamud set an important precedent that government agencies
should post their information on the Internet for free. A few years later, in
1997, Love convened a conference to assess Microsoft's troubling monopoly
power, an event that emboldened the Department of Justice to launch its
antitrust lawsuit against the company. Love later played a key role in
persuading an Indian drugmaker to sell generic HIV/AIDS drugs to South Africa,
putting Big Pharma on the defensive for its callous patent and trade policies
and exorbitant drug prices. Love's timely gambit in 1996 to organize broader
advocacy for the public domain failed, however. He co-founded the Union for the
Public Domain, with a board that included Richard Stallman, but the project
never developed a political following or raised much money.

The American Library Association was the largest and bestfunded advocate on
copyright issues in the 1990s, but its collaborations with other Washington
allies tended to be modest, and its grassroots mobilization disappointing.
Libraries are respected in the public mind precisely because they are stable,
apolitical civic institutions — that is, not activists. Despite its valuable
presence on copyright and Internet policy issues, the library lobby was
temperamentally disinclined to get too far ahead of the curve.

By the end of the decade, a muscular, dissenting discourse about copyright law
was starting to take shape. On one side was a complicated body of
industry-crafted copyright law that claimed imperial powers to regulate more
and more aspects of daily life — your Web site, your music CDs, your
electronic devices, your computer practices. On the other side were ordinary
people who loved how the Internet and digital devices were empowering them to
be creators and publishers in their own right. They just wanted to indulge
their natural human urge to share, tinker, reuse, and transform culture.

The dissent of the progressive copyright scholars and activists, though
pungent, was hardly insurrectionist. These critics were reformers, not bomb
throwers. Most objected to the overreaching scope and draconian enforcement of
copyright law, not to its philosophical foundations. They generally argued that
the problem wasn't copyright law per se, but the misapplication and
overextension of its core principles.

A NEW STORY ABOUT THE PUBLIC DOMAIN
...................................

One of the most notable outgrowths of all this activity was the development of
a new story about the public domain. Scholars took a range of legal doctrines
that were scattered among the sprawling oeuvre of copyright law and
consolidated them under one banner, /the public domain/. The new framing helped
give the public's rights in cultural works a new moral standing and
intellectual clarity.

Even though copyright law has existed for three centuries, the term “public
domain” did not surface in a U.S. Supreme Court decision until 1896. The
public domain was first mentioned in U.S. copyright law in 1909, and while it
occasionally merited passing reference or discussion in later decades, the
concept was not the subject of a significant law review article until 1981.
That article was “Recognizing the Public Domain,” by Professor David
Lange.[^68] “David's article was an absolutely lovely piece that sunk without
a trace,” recalls Jessica Litman. “When a bunch of us discovered [Lange's
article] in the late 1980s, it had been neither cited nor excerpted nor
reprinted nor anything — because nobody was looking for a defense of the
public domain. People were looking for arguments for extending copyright
protection. David was ahead of his time.”

The main reason that the public domain was ignored was that it was generally
regarded as a nullity. “Public domain in the fields of literature, drama,
music and art is the other side of the coin of copyright,” wrote M. William
Krasilovsky in 1967.[^69] “It is best defined in negative terms.” Edward
Samuels wrote that the public domain “is simply whatever remains after all
methods of protection are taken into account.”[^70]

Lange himself acknowledged this conventional wisdom when he wrote that the
public domain “amounts to a dark star in the constellation of intellectual
property.” He took issue with this history, however, and insisted upon the
affirmative value of the public domain. Lange dredged up a number of
“publicity rights” cases and commentary to shed light on the problem: Bela
Lugosi's widow and son claimed that they, not Universal Pictures, should own
the rights to the character Dracula. Representatives of the deceased Marx
Brothers sought to stop a Broadway production spoofing 1930s musicals from
using the Marx Brothers' characters. DC Comics, owner of a trademark in the
Superman character, sued to prevent a group of Chicago college students from
calling their newspaper /The Daily Planet/. And so on.

From such examples, Lange drove home a commonsense lesson about the derivative
nature of creativity: we all depend on others to generate “new” works.
Groucho, Chico, and Harpo Marx couldn't “invent” their stage personas
until, in classic vaudevillian tradition, they had adapted jokes and shtick
from their peers. “In time,” Groucho wrote in his memoirs, “if [a
comedian] was any good, he would emerge from the routine character he had
started with and evolve into a distinct personality of his own. This has been
my experience and also that of my brothers, and I believe this has been true of
most of the other comedians.”

To which Lange added, “Of course, what Groucho is saying in this passage is
that although he and his brothers began as borrowers they ended as inventors. .
. . It is a central failing in the contemporary intellectual property
literature and case law that that lesson, so widely acknowledged, is so
imperfectly understood.”[^71]

In example after example, Lange made the point that “as access to the public
domain is choked, or even closed off altogether, the public loses too: loses
the rich heritage of its culture, the rich presence of new works derived from
that culture, and the rich promise of works to come.” Lange warned that
“courts must dispel” the “impression of insubstantiality” from which
the public domain suffers. Nothing will be resolved, he warned, “until the
courts have come to see the public domain not merely as an unexplored
abstraction but as a field of individual rights as important as any of the new
property rights.”

WHAT IS “AUTHORSHIP”?
.........................

Besides honoring the public domain, copyright reformers sought to develop a
second, more subversive narrative. They questioned the very idea of individual
“authorship” and “originality,” two central pillars of copyright law,
The standard moral justification for granting authors exclusive rights in their
works is the personal originality that they supposedly show in creating new
works. But can “originality” and “authorship” be so neatly determined?
What of the role of past generations and creative communities in enabling the
creation of new works? Don't we all, in the words of Isaac Newton, stand on the
shoulders of giants?

The idea that sharing, collaboration, and adaptation may actually be important
to creativity, and not merely incidental, was a somewhat daring theme in the
early 1990s, if only because it had little recognition in copyright
scholarship. While this line of analysis preceded the Internet, the arrival of
the World Wide Web changed the debate dramatically. Suddenly there was a
powerful, real-life platform for /collective/ authorship. Within fifteen years,
sharing and collaboration has become a standard creative practice, as seen in
Wikipedia, remix music, video mashups, machinima films, Google map mashups,
social networking, and much else.

Of course, in the early 1990s, the promise of online networks was only dimly
understood. But for Jessica Litman, the tightening noose of proprietary control
had troubling implications for fair use and the ability of people to create and
share culture: “Copyright law was no longer as open and porous as it had
been, so I felt compelled to try to defend the open spaces that nobody was
paying attention to.” Litman published a major article on the public domain
in 1990, instigating a fresh round of interest in it and establishing lines of
analysis that continue to this day.[^72]

She made the then-startling claim, for example, that “the very act of
authorship in /any/ medium is more akin to translation and recombination than
it is to creating Aphrodite from the foam of the sea. Composers recombine
sounds they have heard before; playwrights base their characters on bits and
pieces drawn from real human beings and other playwrights' characters. . . .
This is not parasitism; it is the essence of authorship. And, in the absence of
a vigorous public domain, much of it would be illegal.” Litman argued that
the public domain is immensely important because all authors depend upon it for
their raw material, Shrink the public domain and you impoverish the creative
process.

The problem, said Litman, is that copyright law contains a structural
contradiction that no one wants to acknowledge. The law requires
“originality” in order for a work to be protected — but it cannot truly
determine what is “original.” If authors could assert that their works were
entirely original, and courts conscientiously enforced this notion, copyright
law would soon collapse. Everyone would be claiming property rights in material
that had origins elsewhere. Shakespeare's estate might claim that Leonard
Bernstein's /West Side Story/ violates its rights in /Romeo and Juliet/;
Beethoven would prevent the Bee Gees from using the opening chords of his Fifth
Symphony.

When one person's copyright claims appear to threaten another person's ability
to create, the courts have historically invoked the public domain in order to
set limits on the scope of copyright protection. In this backhanded way, the
public domain helps copyright law escape from its own contradictions and
ensures that basic creative elements remain available to all. As Litman
explained:

  Because we have a public domain, we can permit authors to avoid the harsh
  light of a genuine search for provenance, and thus maintain the illusion that
  their works are indeed their own creations. We can tolerate the grant of
  overbroad and overlapping deeds through the expedient assumption that each
  author took her raw material from the commons, rather than from the property
  named in prior deeds.[^73]

In effect, copyright law sets up a sleight of hand: it invites authors to
plunder the commons with the assurance that their borrowings will be politely
ignored — but then it declares the resulting work of authorship
“original” and condemns any further follow-on uses as “piracy.” This
roughly describes the early creative strategy of the Walt Disney Company, which
built an empire by rummaging through the public domain of fairy tales and
folklore, adding its own creative flourishes, and then claiming sole ownership
in the resulting characters and stories.

As Litman unpacked the realities of “authorship,” she showed how the idea
of “originality” serves as a useful fiction. Any author must draw upon
aspects of culture and recombine them without ever being able to identify the
specific antecedents, she pointed out. Judges, for their part, can never really
make a rigorous factual determination about what is “original” and what is
taken from the public domain. In reality, said Litman, authorship amounts to
“a combination of absorption, astigmatism and amnesia.” The public domain
is vague and shifting precisely because it must constantly disguise the actual
limits of individual “originality.”

English professor Martha Woodmansee and law professor Peter Jaszi helped expose
many of the half-truths about “authorship” and “originality.” Their
1994 anthology of essays, /The Construction of Authorship/, showed how social
context is an indispensable element of “authorship,” one that copyright law
essentially ignores.[^74] Thus, even though indigenous cultures collectively
create stories, music, and designs, and folk cultures generate works in a
collaborative fashion, copyright law simply does not recognize such acts of
collective authorship. And so they go unprotected. They are vulnerable to
private appropriation and enclosure, much as Stallman's hacker community at MIT
saw its commons of code destroyed by enclosure.

Before the Internet, the collaborative dimensions of creativity were hardly
given much thought. An “author” was self-evidently an individual endowed
with unusual creative skills. As the World Wide Web and digital technologies
have proliferated, however, copyright's traditional notions of “authorship”
and “originality” have come to seem terribly crude and limited. The
individual creator still matters and deserves protection, of course. But when
dozens of people contribute to a single entry of Wikipedia, or thousands
contribute to an open-source software program, how then shall we determine who
is the “author”?[^75] By the lights of copyright law, how shall the value
of the public domain, reconstituted as a commons, be assessed?[^76]

The Bellagio Declaration, the outgrowth of a conference organized by Woodmansee
and Jaszi in 1993, called attention to the sweeping deficiencies of copyright
law as applied. One key point stated, “In general, systems built around the
author paradigm tend to obscure or undervalue the importance of the ‘public
domain,' the intellectual and cultural commons from which future works will be
constructed. Each intellectual property right, in effect, fences off some
portion of the public domain, making it unavailable to future creators.”[^77]

Another fusillade of flaming arrows engulfed the fortress of “authorship”
and “originality” in 1996, when James Boyle published /Shamans, Software,
and Spleens/. With sly wit and deep analysis, this landmark book identified
many of the philosophical paradoxes and absurdities of property rights in
indigenous knowledge, software, genes, and human tissue. Boyle deftly exposed
the discourse of IP law as a kind of Möbius strip, a smooth strip of logic
that confusingly turns back on itself. “If a geography metaphor is
appropriate at all,” said Boyle, “the most likely cartographers would be
Dali, Magritte and Escher.”[^78]

“YOU HAVE NO SOVEREIGNTY WHERE WE GATHER”
.............................................

The deconstruction of copyright law over the past twenty years has been a
significant intellectual achievement. It has exposed the copyright law's
philosophical deficiencies, showed how social practice deviates from it, and
revealed the antisocial effects of expanding copyright protection. Critics knew
that it would be impossible to defend the fledgling cyberculture without first
documenting how copyright law was metastasizing at the expense of free
expression, creative innovation, consumer rights, and market competition.

But as the millennium drew near, the tech-minded legal community — and
law-minded techies — knew that critiques and carping could only achieve so
much. A winnable confrontation with copyright maximalists was needed. A
compelling counternarrative and a viable long-term political strategy had to be
devised. And then somehow they had to be pushed out to the wider world and made
real.

That task was made easier by the intensifying cultural squeeze. The
proprietarian lockdown was starting to annoy and anger people in their everyday
use of music, software, DVDs, and the Web. And the property claims were growing
more extreme. The American Society of Composers, Authors and Publishers had
demanded that Girl Scout camps pay a public performance license for singing
around the campfire. Ralph Lauren challenged the U.S. Polo Association for
ownership of the word /polo/. McDonald's succeeded in controlling the Scottish
prefix Mc as applied to restaurants and motels, such as “McVegan” and
“McSleep.”[^79]

The mounting sense of frustration fueled a series of conferences between 1999
and 2001 that helped crystallize the disparate energies of legal scholarship
into something resembling an intellectual movement. “A number of us [legal
scholars] were still doing our own thing, but we were beginning to get a sense
of something,” recalls Yochai Benkler, “It was no longer Becky Eisenberg
working on DNA sequences and Pamela Samuelson on computer programs and Jamie
Boyle on ‘environmentalism for the 'Net' and me working on spectrum on First
Amendment issues,” said Benkler. “There was a sense of movement.”[^80]
(“Environmentalism for the 'Net” was an influential piece that Boyle wrote
in 1998, calling for the equivalent of an environmental movement to protect the
openness and freedom of the Internet.)[^81]

“The place where things started to get even crisper,” said Benkler, “was
a conference at Yale that Jamie Boyle organized in April 1999, which was
already planned as a movement-building event.” That conference, Private
Censorship/Perfect Choice, looked at the threats to free speech on the Web and
how the public might resist. It took inspiration from John Perry Barlow's 1996
manifesto “A Declaration of the Independence of Cyberspace.” It is worth
quoting at length from Barlow's lyrical cri de coeur — first published in
/Wired/ and widely cited — because it expresses the growing sense of thwarted
idealism among Internet users, and a yearning for greater self-determination
and self-governance among commoners. Barlow wrote:

  Governments of the Industrial World, you weary giants of flesh and steel, I
  come from Cyberspace, the new home of Mind. On behalf of the future, I ask
  you of the past to leave us alone, You are not welcome among us, You have no
  sovereignty where we gather.

  We have no elected government, nor are we likely to have one, so I address
  you with no greater authority than that with which liberty itself always
  speaks. I declare the global social space we are building to be naturally
  independent of the tyrannies you seek to impose on us. You have no moral
  right to rule us nor do you possess any methods of enforcement we have true
  reason to fear.

  Governments derive their just powers from the consent of the governed. You
  have neither solicited nor received ours. We did not invite you, You do not
  know us, nor do you know our world. Cyberspace does not lie within your
  borders. Do not think that you can build it, as though it were a public
  construction project, You cannot. It is an act of nature and it grows itself
  through our collective actions.

  You have not engaged in our great and gathering conversation, nor did you
  create the wealth of our marketplaces. You do not know our culture, our
  ethics, or the unwritten codes that already provide our society more order
  than could be obtained by any of your impositions.

  You claim there are problems among us that you need to solve, You use this
  claim as an excuse to invade our precincts. Many of these problems don't
  exist. Where there are real conflicts, where there are wrongs, we will
  identify them and address them by our means. We are forming our own Social
  Contract. This governance will arise according to the conditions of our
  world, not yours. Our world is different.

As Barlow made clear, the Internet was posing profound new questions — not
just about politics, but about the democratic polity itself. What would be the
terms of moral legitimacy and democratic process in cyberspace? Would the new
order be imposed by a Congress beholden to incumbent industries and their
political action committees, or would it be a new social contract negotiated by
the commoners themselves? In posing such questions, and doing it with such
rhetorical panache, Barlow earned comparisons to Thomas Jefferson.

The stirrings of a movement were evident in May 2000, when Benkler convened a
small conference of influential intellectual property scholars at New York
University Law School on “A Free Information Ecology.” This was followed in
November 2001 by a large gathering at Duke Law School, the first major
conference ever held on the public domain. It attracted several hundred people
and permanently rescued the public domain from the netherworld of
“nonproperty.” People from diverse corners of legal scholarship, activism,
journalism, and philanthropy found each other and began to reenvision their
work in a larger, shared framework.

Over three decades, copyright scholarship had become more incisive,
impassioned, and focused on the public good — but much of the talk remained
within the rarefied circles of the academy. What to do about the disturbing
enclosures of the cultural commons remained a vexing, open question. The 1990s
saw an eclectic smattering of initiatives, from EFF lawsuits and visionary
manifestos to underfunded advocacy efforts and sporadic acts of hacker mischief
and civil disobedience. All were worthwhile forms of engagement and exploratory
learning. None were terribly transformative. Free software was growing in
popularity in the 1990s, but its relevance to broader copyright struggles and
the Internet was not yet recognized. Congress and the courts remained captive
to the copyright-maximalist worldview. The idea of organizing a
counter-constituency to lay claim to the public domain and forge a new social
contract for cyberspace was a fantasy. Copyright law was just too obscure to
excite the general public and most creators and techies. The commoners were too
scattered and diverse to see themselves as an insurgent force, let alone
imagine they might create a movement.


----------------------------------------
3 WHEN LARRY LESSIG MET ERIC ELDRED
-----------------------------------

/A constitutional test case becomes the seed for a movement./

Once the value of the public domain became evident, and a few visionaries
realized that the commons needed to be protected somehow, an important
strategic question arose: Which arena would offer the best hope for success —
politics, culture, technology, or law?

The real answer, of course, was all of the above. Building a new digital
republic would require a wholesale engagement with the politics of effecting
democratic change and the challenges of building a cultural movement. It would
require the invention of a shared technological infrastructure, and the
development of legal tools to secure the commons. All were intertwined. But as
a practical matter, anyone who aspired to stop the mass-media-driven expansions
of copyright law had to choose where to invest his or her energy. In the
mid-1990s, Lawrence Lessig decided that the greatest leverage would come
through law.

Lessig, usually referred to as Larry, had the knowledge, talent, and good
timing to conceptualize the politics of digital technologies at a ripe moment,
the late 1990s, when the World Wide Web was exploding and people were
struggling to understand its significance. However, Lessig was not content to
play the sage law professor dispensing expertise at rarefied professional and
scholarly gatherings; he aimed to become a public intellectual and highbrow
activist. Through a punishing schedule of public speaking and a series of
high-profile initiatives starting in 1998 and 1999, Lessig became a roving
demigod-pundit on matters of the Internet, intellectual property, and cultural
freedom.

In the course of his frequent travels, he had a particularly significant
rendezvous at the Starbucks on Church Street in Cambridge, Massachusetts. It
was November 1998. A month earlier, Congress had enacted the Sonny Bono
Copyright Extension Act. Lessig was eager to meet with one Eric Eldred, a
retired navy contractor, to see if he would agree to be a plaintiff in the
first federal case to challenge the constitutionality of the copyright clause.

Eldred was a book enthusiast and computer programmer who had reached the end of
his rope. Three years earlier, in 1995, he had launched a simple but brilliant
project: a free online archive of classic American literature. Using his PC and
a server in his home in New Hampshire, Eldred posted the books of Nathaniel
Hawthorne, Henry James, Wallace Stevens, and dozens of other great authors
whose works were in the public domain. Eldred figured it would be a great
service to humanity to post the texts on the World Wide Web, which was just
beginning to go mainstream.

Eldred had previously worked for Apollo Computer and Hewlett-Packard and was
experienced in many aspects of computers and software. In the late 1980s, in
fact, he had developed a system that enabled users to post electronic text
files and then browse and print them on demand. When the World Wide Web
arrived, Eldred was understandably excited. “It seemed to me that there was a
possibility of having a system for electronic books that was similar to what I
had done before. I was interested in experimenting with this to see if it was
possible.”[^82]

So Eldred set out to build his own archive of public-domain books: “I got
books from the library or wherever, and I learned how to do copyright research
and how to scan books, do OCR [opticalcharacter recognition] and mark them up
as HTML [the programming language used on the Web],” he said. “I just
wanted to make books more accessible to readers.”[^83]

Eldred didn't realize it at the time, but his brave little archive, Eldritch
Press, embodied a dawning cultural archetype — the selfpublished digital work
meant to be freely shared with anyone in the world, via the Internet. Thanks to
the magic of “network effects” — the convenience and value that are
generated as more people join a network — Eldred's Web site was soon
receiving more than twenty thousand hits a day. A growing community of book
lovers came together through the site. They offered annotations to the online
books, comments, and links to foreign translations and other materials. In
1997, the National Endowment for the Humanities considered the site so
educational and exemplary that it formally cited Eldritch Press as one of the
top twenty humanities sites on the Web.

Although it was only a one-person project, Eldritch Press was not just an
idiosyncratic innovation. The convergence of telecommunications, personal
computers, and software in the 1990s, otherwise known as the Internet, was
facilitating an explosion of new genres of public expression. We are still
grappling with how this new type of media system is different from broadcasting
and other mass media. But we do know this: it invites mass participation
because the system doesn't require a lot of capital or professional talent to
use. The system favors decentralized interactivity over centralized control and
one-way communication. Ordinary people find it relatively inexpensive and
versatile. Since everyone has roughly the same access and distribution
capacities, the Internet is perhaps the most populist communication platform
and egalitarian marketplace in human history.

This was not the goal of the computer scientists who invented the Internet, of
course. Working under the auspices of the U.S. military, they were chiefly
concerned with building a communications system that would allow academic
researchers to share computerized information cheaply and easily. The idea was
that intelligence and innovation would arise from the “edges” of a
“dumb” network, and not be controlled by a centralized elite in the manner
of broadcasting or book publishing. The Internet — a network of networks —
would be a platform open to anyone who used a shared set of freely accessible
“protocols,” or standardized code, for computer hardware and software.[^*4]

What was radically new about the network architecture was its freedom: No
special qualifications or permissions were needed to communicate or
“publish.” No one needed to pay special fees based on usage. Anyone could
build her own innovative software on top of the open protocols, It is a measure
of the system's power that it has spawned all sorts of innovations that were
not foreseen at the outset: in the 1990s, the World Wide Web, instant
messaging, peer-to-peer file sharing, and Web logs, and, in the 2000s,
podcasts, wikis, social networking software, and countless other applications.
The open, shared protocols of the Internet provided an indispensable
communications platform for each of these innovations to arise.

In building his online archive, Eric Eldred was part of this new cultural
cohort of innovators. He not only shared Richard Stallman's dream — to build
an open, sharing community. He also came to share Stallman's contempt for the
long arm of copyright law. The problem, in Eldred's case, was the corporate
privatization of large portions of the public domain. In the 1990s, the Walt
Disney Company was worried that its flagship cartoon character, Mickey Mouse,
would enter the public domain and be freely available for anyone to use.
Mickey, originally copyrighted in 1928, was nearing the end of his
seventy-five-year term of copyright and was due to enter the public domain in
2003.

Disney led a concerted campaign to extend the term of copyrights by twenty
years. Under the new law, all works copyrighted after January 1, 1923, would be
privately controlled for another twenty years. Corporations would be able to
copyright their works for ninety-five years instead of seventy-five years, and
the works of individual authors would be a private monopoly for the author's
lifetime plus seventy years. Thousands of works that were expected to enter the
public domain in 1999 and following years would remain under copyright until
2019 and beyond.

Congress readily enacted this twenty-year giveaway of monopoly rights on a
unanimous vote, and without any public hearings or debate. Disney was the most
visible beneficiary of the law, prompting critics to dub it the Mickey Mouse
Protection Act. But its more significant impact was to deprive Americans of
access to an estimated four hundred thousand cultural works from the 1920s and
1930s. Books by Sherwood Anderson, music by George Gershwin, poems by Robert
Frost, and tens of thousands of other works would remain under private control
for no good reason. The law was the eleventh time in the course of four decades
that Congress had extended the term of copyright protection. American
University law professor Peter Jaszi complained that copyright protection had
become “perpetual on the installment plan.”

The law was astonishingly inefficient and inequitable as well. To preserve the
property rights of the 2 percent of works from this period that still had
commercial value, the law also locked up the remaining 98 percent of works
(whose owners are often unknown or unable to be located in order to grant
permissions). Indeed, it was these “orphan works” — works still under
copyright but not commercially available, and with owners who often could not
be found — that represent an important “feedstock” for new creativity.
The Sonny Bono Act showered a windfall worth billions of dollars to the largest
entertainment businesses and authors' estates.

At a more basic level, the copyright term extension showed contempt for the
very rationale of copyright law. Copyrights are intended as an inducement to
authors to create works. It is a government grant of monopoly property rights
meant to help authors earn money for producing books, music, film, and other
works. But, as Lessig pointed out, “You can't incent a dead person. No matter
what we do, Hawthorne will not produce any more works, no matter how much we
pay him.” Jack Valenti replied that longer copyright terms would give
Hollywood the incentive to preserve old films from deteriorating and make them
available.

The copyright term extension act privatized so many of the public domain books
on the Eldritch Press Web site, and so offended Eldred's sense of justice, that
in November 1998 he decided to close his site in protest. The new law meant
that he would not be able to add any works published since 1923 to his Web site
until 2019. “I can no longer accomplish what I set out to do,” said
Eldred.[^84]

As luck had it, Larry Lessig was looking for an Everyman of the Internet.
Lessig, then a thirty-seven-year-old professor at Harvard Law School, was
looking for a suitable plaintiff for his envisioned constitutional test case.
He had initially approached Michael S. Hart, the founder of Project Gutenberg,
the first producer of free electronic books. At the time, the project had
nearly six thousand public-domain books available online. (It now has twenty
thousand books; about 3 million books are downloaded every month.) Hart was
receptive to the case but had his own ideas about how the case should be
argued. He wanted the legal complaint to include a stirring populist manifesto
railing against rapacious copyright holders. Lessig demurred and went in search
of another plaintiff.[^85]

After reading about Eldred's protests in the /Boston Globe/, and meeting with
him over coffee, Lessig asked Eldred if he would be willing to be the plaintiff
in his envisioned case. Eldred readily agreed. As a conscientious objector and
draft resister during the Vietnam War, he was ready to go to great lengths to
fight the Sonny Bono Act. “Initially, I volunteered to violate the law if
necessary and get arrested and go to jail,” Eldred said. “But Larry told me
that was not necessary.” A good thing, because under the No Electronic Theft
Act, passed in 1997, Eldred could be charged with a felony. “I could face
jail, fines, seizure of my computer, termination of my Internet service without
notice — and so all the e-books on the Web site could be instantly lost,”
he said.

It was the beginning of a landmark challenge to the unchecked expansion of
copyright law. The case would turbocharge Lessig's unusual career and educate
the press and public about copyright law's impact on democratic culture. Most
significantly, it would, in time, spur the growth of an international free
culture movement.

LARRY LESSIG'S IMPROBABLE JOURNEY
.................................

Since Lessig looms so large in this story, it is worth pausing to understand
his roots. Raised by culturally conservative, rock-ribbed Republican parents in
central Pennsylvania, Lessig was a bright kid with a deep enthusiasm for
politics. “I grew up a right-wing lunatic Republican,” Lessig told
journalist Steven Levy, noting that he once belonged to the National Teen Age
Republicans, ran a candidate's unsuccessful campaign for the Pennsylvania state
senate, and attended the 1980 Republican National Convention, which nominated
Ronald Reagan for president. Larry's father, Jack, was an engineer who once
built Minuteman missile silos in South Dakota (where Lessig was born in 1961),
and who later bought a steelfabrication company in Williamsport,
Pennsylvania.[^86]

Lessig initially thought he would follow in his father's footsteps, and so he
went to the University of Pennsylvania to earn degrees in economics and
management. Later, studying philosophy at Trinity College in Cambridge,
England, he faced growing doubts about his deep-seated libertarian worldview.
Hitchhiking through Eastern Bloc countries, Lessig gained a new appreciation
for the role of law in guaranteeing freedom and making power accountable.
“There were many times when people in Eastern Europe would tell me stories
about the history of the United States that I had never been taught: things
like the history of how we treated Native Americans; and the history of our
intervention in South America; and the nature of our intervention in South East
Asia,” Lessig told Richard Poynder in 2006. “All of those were stories that
we didn't tell ourselves in the most accurate and vivid forms.” These
experiences, said Lessig, “opened up a channel of skepticism in my
head.”[^87]

Lessig's sister Leslie once told a reporter that Larry came back from Cambridge
a very different person: “His views of politics, religion, and his career had
totally flipped.”[^88] No longer aspiring to be a businessman or a
philosopher, Lessig set his sights on law and entered the University of Chicago
Law School in 1986. He transferred the next year to Yale Law School (to be near
a girlfriend), groomed himself to be a constitutional law scholar, and
graduated in 1989.

Although he now considered himself a liberal, Lessig spent the next two years
in the service of two of the law's most formidable conservatives. He clerked
for circuit court judge Richard Posner in 1988–89, followed by a year
clerking for Supreme Court justice Antonin Scalia during the 1990–91 term.
His educational odyssey complete, the thirty-year-old Lessig settled into the
life of a tenured law professor at the University of Chicago Law School.

One of Lessig's early scholarly concerns — adjudication — was not exactly a
warm-up for tub-thumping activism. But it did curiously prefigure his later
interest in using law as a tool to effect political change. In a 1993 law
review article, Lessig wondered how courts should interpret the law when public
sentiment and practice have changed. If a judge is going to be true to the
original meaning of a law, Lessig argued, he must make a conscientious
“translation” of the law by taking account of the contemporary context. A
new translation of the law is entirely justified, and should supplant an old
interpretation, Lessig argued, if prevailing social practices and
understandings have changed, The important thing in interpreting law,
therefore, is “fidelity in translation.”[^89]

Lessig elaborated on this theme in a 1997 article that spent twenty-seven dense
pages pondering how two different Supreme Courts, separated by nearly a
century, could look to identical words in the Constitution and reach precisely
opposite conclusions.[^*5] It is not as if one Court or the other was
unprincipled or wrong, Lessig wrote. Rather, any court must take account of
contemporary social norms and circumstances in “translating” an old law for
new times. Lessig called this dynamic the "/Erie/-effect," a reference to the
U.S. Supreme Court's 1938 ruling in /Erie Railroad Co. v. Tompkins/. The
/Erie/-effect is about the emergence of “a kind of contestability about a
practice within a legal institution,” which prompts “a restructuring of
that practice to avoid the rhetorical costs of that contestability.”[^90]

Lessig described how an /Erie/-effect might be exploited to catalyze a
political shift (paraphrased here): /identify/ a socially contested law, aim to
/force/ the conflicting social practice into the foreground by /inflaming/
conventional discourse, and then /argue/ for a change in legal interpretation
in order to relieve the contestability that has been alleged.[^91] If the
conflict between the law and actual social practice can be made vivid enough, a
court will feel pressure to reinterpret the law. Or the court will defer to the
legislature because the very contestability of the law makes the issue a
political question that is inappropriate for a court to resolve. One notable
instance of the /Erie/-effect in our times, Lessig pointed out, was the
successful campaign by feminist law scholar Catherine MacKinnon to define
sexual harassment in the workplace as a form of illegal discrimination. The
point was to transform popular understanding of the issue and then embody it in
law.

Lessig was not especially focused on tech issues until he ran across Julian
Dibbell's article “A Rape in Cyberspace,” which appeared in the /Village
Voice/ in December 1993.[^92] The piece described the social havoc that ensued
in an online space, LambdaMOO, hosted at Xerox Palo Alto Research Center. One
pseudonymous character “raped” another in the virtual space, using cruel
words and graphic manipulations. The incident provoked an uproar among the
thousand members of LambdaMOO, and had real emotional and social consequences.
Yet, as Dibbell pointed out, “No bodies touched. Whatever physical
interaction occurred consisted of a mingling of electronic signals sent from
sites spread out between New York City and Sydney, Australia.”

For Lessig, the LambdaMOO “rape” had an obvious resonance with Catherine
MacKinnon's arguments in her 1993 book /Only Words/. Does a rape in cyberspace
resemble the harms inflicted on real women through pornography? Lessig saw
intriguing parallels: “I really saw cyberspace as a fantastic opportunity to
get people to think about things without recognizing the political valences.
That's all I was interested in; it was purely pedagogical.”[^93]

To explore the issues further, Lessig developed one of the first courses on the
law of cyberspace. He taught it in the spring semester of 1995 at Yale Law
School, where he was a visiting professor, and later at the University of
Chicago and Harvard law schools. During the Yale class, an exchange with a
student, Andrew Shapiro, jarred his thinking in a new direction: “I was
constantly thinking about the way that changing suppositions of constitutional
eras had to be accounted for in the interpretation of the Constitution across
time. Andrew made this point about how there's an equivalent in the technical
infrastructure [of the Internet] that you have to think about. And then I began
to think about how there were norms and law and infrastructure — and then I
eventually added markets into this — which combine to frame what policymaking
is in any particular context.”[^94]

This line of analysis became a central theme of Lessig's startling first book,
/Code and Other Laws of Cyberspace/, published in 1999.[^95] /Code/ took on
widespread assumptions that the Internet would usher in a new libertarian,
free-market utopia. Cyberlibertarian futurists such as Alvin Toffler, Esther
Dyson, George Gilder, and John Gilmore had routinely invoked cyberspace as a
revolutionary force that would render government, regulation, and social
welfare programs obsolete and unleash the transformative power of free
markets.[^96] In the libertarian scenario, individual freedom can flourish only
if government gets the hell out of the way and lets individuals create,
consume, and interact as they see fit, without any paternalistic or tyrannical
constraints. Prosperity can prevail and scarcity disappear only if meddling
bureaucrats and politicians leave the citizens of the Internet to their own
devices. As Louis Rossetto, the founder and publisher of /Wired/, bluntly put
it: “The idea that we need to worry about anyone being ‘left out' is
entirely atavistic to me, a product of that old economics of scarcity and the
19th century social thinking that grew out of it.”[^97]

Lessig was more wary. In /Code/, he constructed a sweeping theoretical
framework to show how freedom on the Internet must be actively, deliberately
constructed; it won't simply happen on its own. Inspired by conversations with
computer programmer Mitch Kapor, who declared that “architecture is
politics” in 1991, Lessig's book showed how software code was supplanting the
regulatory powers previously enjoyed by sovereign nation-states and
governments. The design of the Internet and software applications was becoming
more influential than conventional sources of policymaking — Congress, the
courts, federal agencies. /Code is law/, as Lessig famously put it.

What was worrisome, Lessig warned, was how relatively small changes in software
code could alter the “architecture of control” governing the Internet. The
current architecture was not necessarily stable and secure, in other words.
Moreover, any future changes were likely to be animated by private, commercial
forces and not publicly accountable and democratic ones. Lessig illustrated
this point with a disarmingly simple drawing of a dot representing an
individual, whose range of behaviors is affected by four distinct forces:
software architecture, the market, law, and social norms. Each of these factors
conspires to regulate behaviors on the Internet, Lessig argued — and
commercial forces would clearly have the upper hand.

/Code/ was a powerful and sobering rebuttal to libertarian assumptions that
“keeping government out” would safeguard individual freedom. Its analysis
quickly became the default conceptual model for talking about governance on the
Internet. It helped situate many existing policy debates — Internet
censorship, digital privacy, copyright disputes — in a larger political and
policy framework. Although many readers did not share Lessig's pessimism,
/Code/ helped expose an unsettling truth — that a great many legislators,
federal agencies, and courts were largely oblivious to the regulatory power of
software code. They didn't have a clue about the technical structures or social
dynamics affecting life on the Internet, let alone how existing law would
comport with this alien domain.

/Code/ was widely praised and widely read. But it was only one project of that
period that catapulted Lessig to international prominence. In the mid-1990s,
Charles Nesson, a bold-thinking, highflying evidence professor at Harvard Law
School, was organizing the Berkman Center for Internet & Society. The new
project aspired to study “the most difficult and fundamental problems of the
digital age,” and show public-interest leadership in addressing them. Nesson,
who had become modestly famous for his role in the W. R. Grace litigation
chronicled in Jonathan Harr's /A Civil Action/, recruited Lessig to be the
Berkman Center's marquee star in 1997. It was an irresistibly prestigious and
visible perch.

This was demonstrated within months, when Judge Penfield Jackson tapped Lessig
to be a “special master” in one of the most important antitrust cases in a
generation, /U.S. v. Microsoft/.[^98] Lessig's assignment was to sift through
the welter of technical claims and counterclaims in the case and produce a
report with recommendations to the court. The government alleged that Microsoft
had abused its monopoly power in its sales of its operating system and Web
browser, particularly in “bundling” the browser with the Windows operating
system.

Microsoft soon raised questions about Lessig's neutrality as a special master.
Among other objections, the company cited his book's claim that software code
is political and a passage that said Microsoft was “absolutely closed”
compared to an open-standards body. It also dredged up an e-mail in which
Lessig facetiously equated using Micosoft's Internet Explorer with “selling
one's soul.” After nearly eight weeks on the job, the Court of Appeals,
citing a technicality, took Lessig off the case, to his enduring
disappointment. He has been deeply frustrated by the implication that he had
been removed for bias (the court made no such finding) and by his abrupt
banishment from a plum role in a landmark case.

WAGING THE /ELDRED/ CASE
........................

Back at the Berkman Center, however, there were plenty of opportunities to
influence the digital future. The center was a hothouse of venturesome ideas
and eccentric visionaries. It was a place where John Perry Barlow could drop by
to talk with Lessig and Berkman co-founder Jonathan Zittrain, one of the early
cyberlaw experts. The center drew upon the ideas of intellectual property guru
William (Terry) Fisher; Charles Nesson, who specialized in launching Big Ideas;
and a self-renewing batch of bright law students eager to make their mark on a
hip and emerging field of law. Richard Stallman at nearby MIT was an occasional
visitor, as was MIT computer scientist Hal Abelson, who combined deep technical
expertise with an appreciation of the social and democratic implications of
digital technologies. It was during this time, in 1998, that Lessig and Abelson
jointly taught The Law of Cyberspace: Social Protocols at Harvard Law School.
The class was an attempt to make sense of some novel legal quandaries exploding
on the Internet, such as computer crime, identity authentication, digital
privacy, and intellectual property.

While nourished by the work of his academic colleagues, Lessig was determined
to come up with ingenious ways to /do something/ about the distressing drift of
copyright law. It was important to take the offensive. Notwithstanding the
pessimism of /Code/, Lessig's decidedly optimistic answer was to gin up a
constitutional challenge to copyright law. Many legal experts and even
sympathetic colleagues were skeptical. Peter Jaszi, a leading intellectual law
professor at American University, told a reporter at the time, “It's not so
much that we thought it was a terrible idea but that it was just unprecedented.
Congress has been extending copyright for 180 years, and this is the first time
someone said it violated the Constitution.”[^99] Others worried that an
adverse ruling could set back the larger cause of copyright reform.

In the spirit of the commons, Lessig and his Berkman Center colleagues decided
that the very process for mounting the /Eldred/ lawsuit would be different:
“Rather than the secret battles of lawyers going to war, we will argue this
case in the open. This is a case about the commons; we will litigate it in the
commons. Our arguments and strategy will be developed online, in a space called
‘openlaw.org.' Key briefs will be drafted online, with participants given the
opportunity to criticize the briefs and suggest other arguments. . . . Building
on the model of open source software, we are working from the hypothesis that
an open development process best harnesses the distributed resources of the
Internet community. By using the Internet, we hope to enable the public
interest to speak as loudly as the interests of corporations.”[^100]

Emulating the open-source development model was a nice touch, and perhaps
useful; dozens of people around the world registered at the Openlaw site and
posted suggestions. Some of the examples and legal critiques were used in
developing the case, and the model was later used by lawyers in the so-called
DeCSS case, in which a hacker broke the encryption of a DVD. But it turns out
that open, distributed creativity has its limits in the baroque dance of
litigation; it can't work when secrecy and confidentiality are important, for
example.

The case, /Eldred v. Reno/ — later renamed /Eldred v. Ashcroft/ when the Bush
II administration took office — was filed in federal district court in
Washington, D.C., on January 11, 1999.[^101] The complaint argued that the
Copyright Term Extension Act violated Article 1, section 8, clause 8, of the
Constitution, which provides that copyright protection shall be of limited
duration. It also argued that the Term Extension Act violated the free speech
clause of the First Amendment. In some respects, the case could never have been
waged without the foundation of legal scholarship produced in the 1990s, which
rehearsed a great many of the arguments presented to the Court. In opposition
were motion picture studios, the music industry, and book publishers. They
argued that Congress had full authority under the Constitution to extend
copyright terms, as it had done since the beginning of the republic.

In October 1999, the U.S. District Court brusquely dismissed the case without
even holding a trial. Lessig and his Berkman colleagues were not entirely
surprised, and quickly set about filing an appeal with the U.S. Court of
Appeals for the District of Columbia Circuit. Going beyond the Openlaw
experiment at Berkman, they enlisted the support of several lawyers at Jones,
Day, Reavis & Pogue. On appeal, Lessig was allowed to argue the case personally
to a panel of judges. But once again, in February 2001, the case was dismissed.
Lessig considered it a significant victory that it was a 2-1 ruling, however,
which meant that a further appeal was possible. Lessig was also encouraged that
the dissenter had been the court's most conservative member, Judge David
Sentelle. Lessig requested that the full circuit court hear the case — a
petition that was also rejected, this time after picking up support from a
liberal dissenter, Judge David Tatel.

Normally, this would have been the end of the road for a case. Very few appeals
court cases are accepted for review by the U.S. Supreme Court, particularly
when the case has not even been argued at trial and no other courts have passed
judgment on the statute. So it was quite surprising when the Supreme Court, in
February 2002, accepted /Eldred/ for review and scheduled oral arguments for
October 2002.

At this point, Lessig realized he needed the advice and support of some
experienced Supreme Court litigators. He enlisted help from additional lawyers
at Jones, Day; Alan Morrison of Public Citizen Litigation Group; Kathleen
Sullivan, the dean of Stanford Law School; and Charles Fried, a former
solicitor general under President Reagan. Professor Peter Jaszi and the
students of his law clinic drafted an amicus brief.

A key concern was how to frame the arguments. Attorney Don Ayer of Jones, Day
repeatedly urged Lessig to stress the dramatic harm that the Bono Act was
inflicting on free speech and free culture. But as Lessig later confessed, “I
hate this view of the law. . . . I was not persuaded that we had to sell our
case like soap.”[^102] Lessig was convinced that the only way /Eldred/ could
prevail at the Supreme Court would be to win over the conservative justices
with a matter of principle. To Lessig, the harm was obvious; what needed
emphasis was how the Sonny Bono Act violated “originalist” principles of
jurisprudence. (Originalist judges claim to interpret the Constitution based on
its “original” meanings in 1791, which includes a belief that Congress has
strictly enumerated powers, not broad legislative discretion.)

“We tried to make an argument that if you were an originalist— in the way
these conservative judges said they were in many other cases — then you
should look to the original values in the Copyright Clause,” said Lessig.
“And we argued that if you did that then you had to conclude that Congress
had wildly overstepped its constitutional authority, and so the law should be
struck down.”[^103] Flaunting the harm caused by the copyright term extension
struck Lessig as showy and gratuitous; he considered the harm more or less
selfevident. In the aftermath of a public debate that Lessig once had with Jack
Valenti, a questioner on Slashdot, a hacker Web site, suggested that Lessig
would be more persuasive if he asserted “a clear conception of direct harm .
. . than the secondary harm of the copyright holders getting a really sweet
deal.” Lessig conceded that such a focus “has been a weakness of mine for a
long time. In my way of looking at the world, the point is a matter of
principle, not pragmatics. . . . There are many others who are better at this
pragmatism stuff. To me, it just feels insulting.”[^104]

And so, despite warnings to the contrary, Lessig's legal strategy relied on a
call to uphold originalist principles. Having clerked for Justice Scalia and
Judge Posner, Lessig felt that he understood the mind-set and sympathies of the
conservative jurists. “If we get to the Supreme Court,” Lessig told
Slashdot readers in December 2001, “I am certain that we will win. This is
not a left/right issue. The conservatives on the Court will look at the
framers' Constitution— which requires that copyrights be granted for
‘limited times' — and see that the current practice of Congress . . . makes
a mockery of the framers' plan. And the liberals will look at the effect of
these never-ending copyrights on free speech, and conclude that Congress is not
justified in this regulation of speech. The Supreme Court doesn't give a hoot
about Hollywood; they will follow the law.”[^105]

Lessig took pride in the fact that thirty-eight amicus briefs were filed on
behalf of /Eldred/. They included a wide range of authors, computer and
consumer electronics companies, and organizations devoted to arts, culture,
education, and journalism. Besides the usual suspects like the Free Software
Foundation, Electronic Frontier Foundation, and Public Knowledge, supporting
briefs were filed by fifteen economists including Kenneth Arrow and Milton
Friedman, Phyllis Schlafly of the Eagle Forum, and the Intel Corporation.

At oral arguments, Lessig immediately confronted a skeptical bench. Justice
Sandra Day O'Connor worried about overturning years of previous copyright term
extensions. Justice William Rehnquist proposed. “You want the right to copy
verbatim other people's books, don't you?” And when Justice Anthony Kennedy
invited Lessig to expound upon the great harm that the law was inflicting on
free speech and culture, Lessig declined the opportunity. He instead restated
his core constitutional argument, that copyright terms cannot be perpetual.
“This was a correct answer, but it wasn't the right answer,” Lessig later
confessed in a candid postmortem of the case. “The right answer was to say
that there was an obvious and profound harm. Any number of briefs had been
written about it. Kennedy wanted to hear it. And here was where Don Ayer's
advice should have mattered. This was a softball; my answer was a swing and a
miss.”[^106] No justices spoke in defense of the Sonny Bono Act.

Yet they had clear reservations about the Supreme Court's authority to dictate
the length of copyright terms.

A few months later, on January 15, 2003, the Supreme Court announced its
ruling: a 7-2 defeat for Eldred. The majority opinion, written by Justice Ruth
Bader Ginsburg, did not even raise the “enumerated powers” argument or
engage with originalist philosophy. “We are not at liberty to second-guess
Congressional determinations and policy judgments of this order, however
debatable or arguably unwise they may be,” Ginsburg wrote.[^107] She likewise
ignored the idea that there is a “copyright bargain” between the American
people and copyright holders, which entitles the public to certain rights of
access to the public domain. As for copyright's impact on free speech, Ginsburg
invoked the fair use doctrine and the “idea/expression dichotomy” (the
notion that ideas are freely available but expression can be copyrighted) as
sufficient protections for the public. She ignored the fact that both doctrines
were (and are) under fierce assault.

Justices Stephen Breyer and John Paul Stevens accepted Lessig's arguments, and
wrote separate dissents. Breyer — a respected scholar of copyright law since
his famous 1970 essay “The Uneasy Case for Copyright”[^108] —agreed that
copyright terms had effectively become perpetual, and that the law was
therefore unconstitutional. Stevens complained that the majority decision
reneged on the copyright bargain and made copyright law “for all intents and
purposes judicially unreviewable.”

In assessing the broad impact of the /Eldred/ ruling, copyright scholar Siva
Vaidhyanathan cited law professor Shubha Ghosh's observation that the /Eldred/
ruling had effectively “deconstitutionalized” copyright law. /Eldred/
pushed copyright law

  farther into the realm of policy and power battles and away from principles
  that have anchored the system for two centuries. That means public interest
  advocates and activists must take their battles to the public sphere and the
  halls of Congress. We can't appeal to the Founders' wishes or republican
  ideals. We will have to make pragmatic arguments in clear language about the
  effects of excessive copyright on research, teaching, art and journalism. And
  we will have to make naked mass power arguments with echoes of “we want our
  MP3” and “it takes an industry of billions to hold us back.”[^109]

A MOVEMENT IS BORN
..................

The /Eldred/ case had a paradoxical effect. Early on, Lessig had said, “We
didn't want to make it a big political cause. We just wanted to make it an
extension of the existing Supreme Court jurisprudence, because we realized that
the only way to win the case was to win the conservatives' view, and the
conservatives were not likely to be motivated by great attacks on media
concentration.”[^110] The upshot of the Court's ruling was to intensify the
political battles over copyright law. While such resistance was already
growing, the /Eldred/ ruling and the publicity surrounding it spawned a new
generation of “copyfighters.” Lessig had wanted to protect the commons
through law, only to find that the courts were unwilling to offer any help. Any
answers would now have to be pursued through politics, culture, and technology
— and ingenious uses of law where feasible. How to proceed in this uncharted
territory became the next challenge, as we see in chapter 4.

After four years of relentless work, Lessig was frustrated and dejected. “I
had failed to convince [the Supreme Court] that the issue was important,” he
wrote in a frank confessional, “and I had failed to recognize that however
much I might hate a system in which the court gets to pick the constitutional
values that it will respect, that is the system we have.”[^111] For a
constitutional law scholar, it was a rude awakening: constitutional
originalists could not be taken at their word! Scalia and fellow justice
Clarence Thomas had declined to stand behind their jurisprudential principles.

Yet Lessig had certainly been correct that /Eldred/ would not succeed unless it
convinced the Court's conservative majority. The fact that the originalist
gambit failed was perhaps the strongest message of all: /nothing/ would
convince this Court to rein in the excesses of copyright law.

Even before the Supreme Court had delivered its ruling, Lessig admitted his
misgivings about the power of law to solve copyright's failings: “The more
I'm in this battle, the less I believe that constitutional law on its own can
solve the problem. If Americans can't see the value of freedom without the help
of lawyers, then we don't deserve freedom.”[^112] Yet mobilizing
freedom-loving Americans to seek redress from Congress was also likely to be
doomed. Hollywood film studios and record companies had showered some $16.6
million and $1.8 million, respectively, on federal candidates and parties in
1998. Legislators know who butters their bread, and the public was not an
organized influence on this issue. No wonder a progressive copyright reform
agenda was going nowhere.

Four years after the /Eldred/ ruling, Lessig had some second thoughts about the
“Mickey Mouse” messaging strategy. Opponents of the copyright term
extension, including Lessig, had often flaunted Mickey motifs in their dealings
with the press and railed at the “Mickey Mouse Protection Act.” Yet in
2006, Lessig lamented to one interviewer that “the case got framed as one
about Mickey Mouse. Whereas the reality is, who gives a damn about Mickey
Mouse? The really destructive feature of the Sonny Bono law is the way it locks
up culture that has no continuing commercial value at all. It orphaned culture.
So by focusing on Mickey Mouse, the Court thought this was an issue of whether
you believed in property or not. If, however, we had focused people on all the
culture that is being lost because it is locked up by copyright, we might have
succeeded.”[^113]

The lasting impact of the /Eldred/ case, ironically, may have less to do with
the law than with the cultural movement it engendered. The lawsuit provided a
powerful platform for educating the American people about copyright law. A
subject long regarded as arcane and complicated was now the subject of
prominent articles in the /New York Times/, /Salon/, computer magazines, wire
services, and countless other publications and Web sites. A cover story for the
/Los Angeles Times/'s Sunday magazine explained how the case could “change
the way Hollywood makes money — and the way we experience art.” /Wired/
magazine headlined its profile of Lessig “The Great Liberator.” Lessig
himself barnstormed the country giving dozens of presentations to librarians,
technologists, computer programmers, filmmakers, college students, and many
others. Even Lessig's adversary at the district court level, Arthur R. Miller,
a Harvard Law School professor, agreed, “The case has sparked a public
discussion that wasn't happening before.”

Lessig's orations often provoked the fervor of a revival meeting — and led to
more than a few conversions. This may appear surprising because Lessig, with
his receding hairline and wireframe glasses, strikes an unprepossessing pose.
In the professorial tradition, he can sometimes be didactic and patronizing.
But on the stage, Lessig is stylish, poised, and mesmerizing. His carefully
crafted talks are intellectual but entertaining, sophisticated but
plainspoken— and always simmering with moral passion. He typically uses a
customized version of Keynote, a Macintosh-based program similar to PowerPoint,
to punctuate his dramatic delivery with witty visuals and quick flashes of
words. (Experts in professional presentations have dubbed this style the
“Lessig Method,” and likened it to the Takahashi Method in Japan because
slides often use a single word, short quote, or photo.)[^114]

More than a sidebar, Lessig's public speaking has been an important aspect of
his leadership in building a commons movement. His talks have helped some
fairly sequestered constituencies in technical fields — computer programming,
library science, Internet policy, copyright law — understand the larger
political and cultural significance of their work. The results have sometimes
been galvanizing. As one veteran hacker told me in 2006, “There's a whole
connoisseurship of Lessig talks. He's a little past his peak right now — but
there was a period where, like when he gave the lecture at OSCON [a conference
of open-source programmers], when he was done, they wanted to start a riot.
People were literally milling around, looking for things to smash. He was
saying to these people who worked on open source, ‘There's a larger world
context to your work. The government is doing things — and you can stop
them!' ”[^115]

Following oral arguments before the Supreme Court, the movement — such as it
was — had a rare gathering of its leaders. Public Knowledge co-hosted a
luncheon for those who had aided the lawsuit. The diners spanned the worlds of
libraries, computers, Internet publishing, public-interest advocacy, and many
other fields. The event was held at Washington's Sewall-Belmont House, where
the National Woman's Party once led the fight for women's suffrage. This
prompted Gigi Sohn, president of Public Knowledge, to declare, “We, too, are
building a movement.”[^116]

So after arguing — and losing — before the U.S. Supreme Court, what does a
copyright superstar do for an encore?

A seed had already been planted at the Starbucks meeting four years earlier.
Eldred recalls telling Lessig, “I think this case is very important, and I
think you're the right guy for this. But at the same time, I'd like to talk to
you about something else. I really think that we need to start up some sort of
a copyright conservancy, which would be sort of like a nature conservancy. It
would allow people to donate books to the public domain; we could then take
ownership of them. They could maybe have a tax deduction for them, and we could
— instead of having the book privately owned — they would be in the public
domain, maybe before the copyright term expired. We could sort of have an
independent group maintain this conservancy, and allow the books to be put on
the Internet for free.”

Eldred remembers that Lessig “was sort of stunned. He didn't have anything to
say for a little while. We sort of looked at each other, and I think he was
very shocked and surprised that I said that. And he said, ‘I don't think we
can do it until we've done the work on the copyright term extension act suit,
but I promise to do it.'”[^117]


----------------------------------------
PART II
=======


----------------------------------------
THE RISE OF FREE CULTURE
========================


----------------------------------------
[INTRO]
-------

To the commoners seeking to build a new cultural universe, the failure of the
/Eldred/ case in the U.S. Supreme Court was both depressing and liberating. It
confirmed what the legal scholars of the 1990s had long suspected— that both
Congress and the courts were captives to a backward-looking vision of copyright
law. Government was tacitly committed to a world of centralized and commercial
mass media managed by elite gatekeepers. That was not likely to change soon.

As for helping build a new digital republic with a more open, democratic
character, the Clinton administration made its intentions clear in its infamous
White Paper. It wanted to convert the gift economy of the Internet into a
wall-to-wall marketplace. It wanted to give sellers absolute control over
content and limit the disruptions of innovative newcomers. The government,
acting on behalf of the film, record, and book industries, had no desire to
legitimize or fortify the sharing culture that was fast gaining a hold on the
Internet. Quite the contrary: strengthening the public's fair use rights,
access to the public domain, and online free speech rights might interfere with
the perceived imperatives of electronic commerce. /Freedom/ would therefore
have to be defined as the freedom of consumers to buy what incumbents were
selling, not as a robust civic freedom exercised by a sovereign citizenry.

By the conclusion of /Eldred/, in 2003, it was clear that the copyright
dissidents were not just confronting one policy battle or another; they were
confronting an antiquated and entrenched worldview. While Lessig, Eldred, and
the growing band of commoners realized that it was important to pay close
attention to pending legislation and lawsuits, many of them also realized that
the real challenge was to develop a new vision — and then try to actualize
it.

A more affirmative, comprehensive vision was needed to supersede the limited
intellectual parameters of copyright law.Copyright law was a mode of property
discourse, after all, and that discourse simply could not adequately express
the aspirations of hackers, citizen-journalists, librarians, academics,
artists, democrats, and others trying to secure open online spaces for
themselves. The online insurgents acknowledged the great importance of fair use
and the public domain, but they also considered such doctrines to be vestiges
of an archaic, fraying legal order. It was time to salvage what was valuable
from that order, but otherwise instigate a new language, a new aesthetic, a new
legal regime, a new worldview.

This meant venturing into risky, unknown territory. Law professors accustomed
to working within the comfort of the academy would have to clamber onto public
stages and set forth idealistic, politically inflected scenarios for Internet
culture. Activists accustomed to rhetorical critiques would have to initiate
pragmatic, results-driven projects. Free software hackers would have to invent
new software and digital protocols. Volunteers would need to be enlisted and
organized and funding secured to sustain bare-boned organizational structures.
Wholly new constituencies would have to be imagined and mobilized and brought
together into something resembling a new movement. Part II, The Rise of Free
Culture, describes the building of this foundation from 2000 to 2005.


----------------------------------------
4 INVENTING THE CREATIVE COMMONS
--------------------------------

/A public-spirited cabal schemes for a way to legalize sharing./

Larry Lessig remembers his Starbucks conversation with Eric Eldred as a
“crystallizing moment,” a revelation that the stakes in copyright reform
were much higher than he had originally imagined. Both Lessig and Eldred
obviously wanted to win the lawsuit and recognized its importance. But Eldred
had made clear that he didn't just want to roll back regressive laws; he wanted
to develop an affirmative and sustainable alternative.

This got Lessig thinking: “So, okay — you get the Supreme Court to strike
the laws down, but you still live in a world where people think that everything
is property and has to be owned. If nobody has a political awareness about why
the judicial response makes sense, then it's a pretty empty result.”[^118]
Throughout the /Eldred/ case, paradoxically enough, Lessig says he was
“skeptical” of the traditional liberal strategy of seeking redress through
the courts.

The turning point for him, Lessig recalled, was in recognizing that Eldred was
not just a plaintiff in a test case but “someone trying to build a movement
around a practice of making things available in a way that took advantage of
the infrastructure of the Net.”[^119] True, Eldritch Press resembled an
old-style archive of canonical works. Yet Eldred's goal all along had been to
host an active social community of book lovers, not just provide a repository
for old texts. The Web site's real importance was in the social activity it
represented — the fact that thousands of participant-readers could come
together around a self-selected amateur eager to build a new type of social
community and information genre.

Lessig told me that when he recognized Eldred's Web site as a new type of
social practice, it helped define the challenge: “The question became a very
technical, legal one: How could we instantiate that movement?” Lessig said he
needed to find a way to “disambiguate the social practice.” By that bit of
tech-legalese, he meant, How could the practices and values animating Eldred's
Web site be articulated in law, denoted on the Web, and thereby be seen for
what they were: a new mode of social practice and cultural freedom?

It helps to remember that in 1998 and the following years, the legality of
sharing online works and downloading them was highly ambiguous. Prevailing
legal discourse set forth a rather stark, dualistic world: either a work is
copyrighted with “all rights reserved,” or a work is in the public domain,
available to anyone without restriction. The mental categories of the time
offered no room for a “constituency of the reasonable,” in Lessig's words.

Copyright law made nominal provisions for a middle ground in the form of the
fair use doctrine and the public domain. But Lessig realized that fair use was
“just a terrible structure on which to build freedom. There are basically no
bright lines; everything is a constant debate. Of course, we don't want to
erase or compromise or weaken [these doctrines] in any sense. But it's very
important to build an infrastructure that doesn't depend upon four years of
litigation.” Or as Lessig was wont to put it in his impassioned performances
on the stump: “Fuck fair use.”[^120]

This was a theatrical flourish, of course. Back in Palo Alto, Lessig in 2001
had launched the Center for Internet & Society at Stanford Law School, which
actively takes on lawsuits seeking to vindicate the public's fair use rights,
among other things. One notable case was against Stephen Joyce, the grandson of
novelist James Joyce. As executor of the Joyce literary estate, Stephen Joyce
steadfastly prevented dozens of scholars from quoting from the great writer's
archive of unpublished letters.[^121] (After losing a key court ruling in
February 2007, the Joyce estate settled the case on terms favorable to a
scholar who had been denied access to the Joyce papers.)

But Lessig's intemperance toward fair use has more to do with the almost
subliminal void in legal discourse and political culture. There was no way to
talk about the social behaviors exemplified by Eldred's Web site except through
crabbed, legalistic rules. The only available language, the default vocabulary,
is copyright law and its sanctioned zones of freedom, such as fair use. Lessig
wanted to open up a new, more bracing line of discourse. “We wanted to rename
the social practice,” he said. It sounds embarrassingly grandiose to state it
so bluntly, but in later years it became clear to Lessig and his loose
confederation of colleagues that the real goal was to /imagine and build a
legal and technical infrastructure of freedom/.

Initially, the goal was more exploratory and improvisational — an earnest
attempt to find leverage points for dealing with the intolerable constraints of
copyright law. Fortunately, there were instructive precedents, most notably
free software, which by 2000, in its opensource guise, was beginning to find
champions among corporate IT managers and the business press. Mainstream
programmers and corporations started to recognize the virtues of GNU/Linux and
opensource software more generally. Moreover, a growing number of people were
internalizing the lessons of Code, that the architecture of software and the
Internet really does matter.

Even as he sought to prevail in /Eldred/, Lessig understood that enduring
solutions could not be conferred by the U.S. Supreme Court; they had to be made
real through people's everyday habits. The commoners needed to build a new set
of tools to actualize freedom on the Internet, and to develop a new language, a
new epistemology, a new vision, for describing the value proposition of sharing
and collaboration. The big surprise, as we will see in chapter 6, was the
latent social energies poised to support this vision.

WHAT IF . . . ?
...............

Shortly after the /Eldred/ case was filed in January 1999, a number of Harvard
Law students working with Lessig announced the formation of a new group,
“Copyright's Commons.”[^122] Led by Jennifer Love and Ashley Morgan,
Copyright's Commons published a monthly Web newsletter that provided updates on
the progress of the /Eldred/ case and miscellaneous news about the public
domain.

Copyright's Commons described itself as “a coalition devoted to promoting the
public availability of literature, art, music, and film.” It was actually a
named plaintiff in the /Eldred/ case.

That spring, Copyright's Commons announced a new project that it called the
“counter-copyright [cc] campaign.” Billed as “an alternative to the
exclusivity of copyright,” the campaign invited the general public to “show
your support for the public domain by marking your work with a [cc] and a link
to the Copyright's Commons website. . . . If you place the [cc] icon at the end
of your work, you signal to others that you are allowing them to use, modify,
edit, adapt and redistribute the work that you created.”

The project may have been an imaginative call to arms, but there was no
infrastructure behind it except one Web page, and no background material except
a Web link to the Open Source Initiative. Wendy Seltzer, a Harvard Law student
at the time, recalled that the [cc] symbol produced by Copyright's Commons
“was supposed to be a public domain dedication, but nobody had yet gone
through all of the thinking about what was actually required to put something
into the public domain, and did this satisfy the ‘affirmative act'
requirements [of the law]? Part of the germ of the Creative Commons was
thinking about what would it take to make this — the [cc] symbol — an
actual, meaningful, legally binding statement.”[^123]

Lessig, in the meantime, was keeping a frenetic schedule. He was overseeing the
progress of the /Eldred/ lawsuit; traveling to give speeches to dozens of
conferences and forums every year; promoting his book Code; and writing a
monthly column in the /Industry Standard/ until it went under with the tech
bubble collapse in 2001. The year before, Kathleen Sullivan of Stanford Law
School persuaded Lessig to join its faculty and supervise a new law clinic, the
Center for Internet and Society.[^124] Along the way Lessig also got married to
Bettina Neuefeind, a human rights lawyer.

Work on /Eldred/ intensified after the district court dismissed the case in
October 1999. Lessig embarked on a new round of legal strategizing with
colleagues to prepare the appeals court brief, which was submitted in May 2000.
Throughout this period, intellectual property (IP) thinkers and tech activists
— especially those in the Lessig/Cambridge/Stanford axis — were highly
attuned to the gathering storm in copyright and software policy.

One of the most tumultuous developments was Napster, a homemade file-sharing
software program that had become an international sensation. Released in June
1999, Napster was the creation of hacker Shawn Fanning, then a student at
Northeastern University in Boston. Within a year, the free program had been
downloaded by an estimated 70 million users, drawing fierce denunciations by
the recording industry and Washington officials. Napster used centralized file
directories on the Internet to connect users to music files on thousands of
individual computers. By enabling people to download virtually any recorded
music in existence, for free, it was as if the fabled “cosmic jukebox” had
arrived. Of course, much of the copying was blatantly illegal. Yet consumers
welcomed Napster as one of the few vehicles they had for thumbing their nose at
a reactionary music industry that refused to offer digital downloads. The
Recording Industry Association of America (RIAA) sued Napster in December 1999,
and succeeded in shutting it down in July 2001.[^125]

The Napster craze intensified the polarized property discourse that Lessig and
his colleagues were trying to transcend. Napster encouraged an either/or debate
by suggesting that a song is either private property or contraband; there was
no middle ground for fair use or the public domain. While the RIAA and acts
like Metallica and Madonna railed against massive copyright infringements,
defenders of Napster were quick to point out its promotional power. An album
produced by the English rock band Radiohead, for example, was downloaded for
free by millions of people before its release — a fact that many credit with
pushing the album, Kid A, to the top of the Billboard CD sales chart. But such
claims carried little weight against those defending what they considered their
property rights.

The controversy over Napster was clearly influential in shaping the debate over
how to protect the public domain. Berkman Center co-director Jonathan Zittrain
recalls, “If we're trying to hang the hopes of the community on the right
just to copy stuff, we're going to lose — and maybe we should. [The issue] is
actually about the right to manipulate the symbols and talismans of our
culture” — what Professor Terry Fisher likes to call “semiotic
democracy.”[^126]

The problem was that copyright discourse, at least in the hands of the record
and film industries, refused to acknowledge that the sharing and reuse of works
might be necessary, desirable, or legal. The concept did not compute. There was
a conspicuous void in the prevailing terms of debate. So the challenge facing
the Cambridge copyright cabal was really a riddle about epistemology, law, and
culture rolled into one. How could a new type of free culture, independent of
the market, be brought into existence? And how could the creative works of this
imagined culture be made legally “shareable” instead of being automatically
treated as private property?

This was an unprecedented challenge. When culture was chiefly a set of analog
media — books, records, film — there had been affirmative legal limits on
the scope of copyright. Before 1978, the law regulated only commercial uses of
a work and only works that had been formally registered, which meant that most
works automatically remained in the public domain. Moreover, there was a
natural, physical “friction” preventing copyright holders from
over-controlling how a work could circulate and be used. When words were fixed
in books and sounds embedded in vinyl, people could circulate those objects
freely, without having to ask permission from copyright holders. In the digital
world, however, the physical constraints of analog media disappeared. Copyright
holders now claimed that every digital blip, however transient, constituted a
“copyright event” subject to their unilateral control. In practice, this
greatly weakened the rights a person could enjoy under the fair use doctrine.

In a sense, the entire legal and cultural framework for free culture needed to
be reimagined so it could function in the digital environment. The terms of
fair use essentially had to be renegotiated — an undertaking that copyright
law had never had to tackle in the past. But how might that be achieved when
both Congress and the courts were beholden to the copyright maximalists'
worldview?

Such were the kinds of conversations that swirled around the Berkman Center,
Harvard Law School, MIT, and a handful of progressive intellectual property
circles. Such discussions had been going on for years, especially in the
context of free software and public-domain scholarship, but now they were
reaching the lay public. The Napster and /Eldred/ cases were vehicles for
educating the press and the public, and Lessig's book /Code/ was becoming must
reading for anyone who cared about Internet governance and digital culture.

Amid this swirl of copyright controversy, MIT professor Hal Abelson had lunch
with Lessig at the Harvard Faculty Club in July 2000. The two had co-taught a
class on cyberlaw two years earlier and shared many interests in the confluence
of copyright and technology. One topic that day was Eric Eldred's idea of a
copyright conservancy — a “land trust” for public-domain works. On August
1, 2000, Abelson sent Zittrain an e-mail:

  /Here's an idea that we might be able to get going, and where the Berkman
  Center could help./

  /Let's set up a tax-free, charitable foundation to which artists and record
  label companies could donate the copyright for recorded music. I'm thinking
  of all the old music for which there isn't currently an active market./

  /The foundation would arrange for this stuff to be loaded for free onto the
  internet and give the public permission to use it. The artists and record
  labels get a tax writeoff. The RIAA and Napster hug and kiss, and everyone
  goes home happy./

  /What do you think?/

  /Hal/

Zittrain loved the idea, and suggested that it might make a great clinical
project for Harvard Law students that fall. But he wondered if the Copyright
Clearinghouse Center — a licensing and permissions organization for music —
already offered such a service (it didn't). Lessig proposed that Stanford and
Harvard law schools jointly develop the program. He immediately identified one
glaring problem: it would be difficult to “establish a process for valuing
gifts of copyrighted stuff that would be clearly understood and would be
accepted by the IRS.”

What ensued was a lengthy and irregular series of e-mail conversations and
social encounters through which the idea was chewed over and refined. Lessig
acted as the “supernode” among a small group of participants that initially
included Zittrain, Eldred, Nesson, and Diane Cabell, a lawyer and administrator
at the Berkman Center. Within a month, others were invited into the
conversation: Richard Stallman; Duke Law professors James Boyle and Jerome H.
Reichman; and documentary film producer Eric Saltzman, who had just become
director of the Berkman Center.

A digital archive for donated and public-domain works had great appeal. Just as
land trusts acted as trustees of donated plots of land, so the Copyright's
Commons (as Lessig proposed that it be named) would be a “conservancy” for
film, books, music, and other works that were either in the public domain or
donated. Six weeks after Abelson's original suggestion, Lessig produced a
“Proposal for an Intellectual Property Conservancy” for discussion
purposes.[^127] He now called the concept “an IP commons” — “the
establishment of an intellectual property conservancy to facilitate the
collection and distribution under a GPL-like license of all forms of
intellectual property.” As elaborated by two Harvard Law School students,
Chris Babbitt and Claire Prestel, “The conservancy will attempt to bridge the
gap between authors, corporate copyright holders and public domain advocates by
providing a repository of donated works which we believe will create a more
perfect ‘market' for intellectual property.”[^128]

Friendly critiques started arriving immediately. Stallman considered the
proposal a “good idea overall,” but as usual he objected to the words, such
as “intellectual property” and “copyright protection,” which he
considered “propaganda for the other side.”[^129] Abelson, a friend and
colleague of Stallman's at MIT, was not finicky about word choices, but he did
believe that software donations should be directed to the Free Software
Foundation, not to the envisioned project. FSF already existed, for one thing,
but in addition, said Abelson, “It may be detrimental to have people
initially associate this [new project] too closely with the FSF. . . . We need
to craft a public position that will unify people. An FSF-style ‘let's undo
the effects of all those evil people licensing software' is not what we want
here.”[^130] Some people suggested attracting people to the conservancy by
having “jewels” such as material from the estates of deceased artists.
Another suggested hosting special licenses, such as the Open Audio License, a
license issued by the Electronic Frontier Foundation in 2001 that lets
musicians authorize the copying and reuse of their songs so long as credit is
given and derivative songs can be shared.

The most difficult issue, said Abelson, was the economics of the project. The
care and maintenance of donations, such as the master version of films, could
be potentially huge expenses. Digitizing donated works could also be expensive.
Finally, there were questions about the economic incentives to potential
donors. Would people really wish to donate works that have significant cash
value?

Answers to such questions were hardly self-evident, but there were encouraging
signs. After Lessig gave a speech at the University of Michigan in September
2000, a man came up to him and announced, “I'm one of the people who
benefited by the Mickey Mouse Protection Act.” It was Robert Frost, Jr., son
of the great poet. Frost said, “I obviously need to check with my family, but
we may be interested in becoming a contributor to your conservancy.”[^131] If
Robert Frost's estate could come forward with his literary legacy, perhaps
there were others willing to do the same.

When Berkman Center director Eric Saltzman joined the conversation, he raised a
series of difficult questions about the whole idea:

  Why would a person or corp. donate copyrighted materials? Larry's draft
  implies a benefit to the IP owner — does this mean broader Internet
  facilitated use, and not merely a tax deduction? Under what circumstances, if
  any, does the Conservancy charge for use of its IP? If a user modifies a
  story, say, producing a screenplay, to whom does that screenplay belong?
  Would a motion picture based upon that screenplay owe $$ to the Conservancy?
  If so, how much (this is the damages phase of the /Rear Window/ case)?[^132]
  Wouldn't a new, hopeful band prefer to allow free use of its song(s) on a
  commercially promoted site like MP3.com rather than the Conservancy site? All
  asking: How to make the Conservancy into a useful garden, not a well-meaning
  weed patch of unwanted, neglected IP?[^133]

By early October 2001, some of these questions had been provisionally answered.
For example: Only digital works would be accepted initially. No limitations or
restrictions would be set on the use of donated works. Prospective academic
partners would include the University of California at Berkeley, Duke, Harvard,
MIT, and Stanford. Lessig suggested both Richard Stallman and Jack Valenti as
possible board members. The central goal was to develop a new sort of
noncommercial space in cyberspace for the sharing and reuse of music, visual
art, film, literature, nonfiction, academic work, software, and science.[^134]

But many questions still hung in the air. Could the free software ethic really
translate to other creative genres? Would tax incentives elicit donations of
works? Would independent appraisals of donated works be needed? How would the
conservancy search the titles of works and get permissions clearances?

For all of its brainpower and commitment, Lessig's rump caucus might not have
gotten far if it had not found a venturesome source of money, the Center for
the Public Domain. The center — originally the Red Hat Center — was a
foundation created by entrepreneur Robert Young in 2000 following a highly
successful initial public offering of Red Hat stock. As the founder of Red Hat,
a commercial vendor of GNU/Linux, Young was eager to repay his debt to the
fledgling public-domain subculture. He also realized, with the foresight of an
Internet entrepreneur, that strengthening the public domain would only enhance
his business prospects over the long term. (It has; Young later founded a
print-on-demand publishing house, Lulu.com, that benefits from the free
circulation of electronic texts, while making money from printing hard copies.)

The director of the center, Laurie Racine, a former geneticist and business
professor, was skilled at making shrewd strategic grants and “character
bets” in public-domain activism. Because the center was not hobbled by the
bureaucracy or timidity that afflicts many large foundations, it was able to
make swift decisions and bold bets on innovative projects. (I came to work
closely with Racine on a number of projects, including the co-founding of
Public Knowledge, in 2001.)

Lessig met with Racine in October 2000. On a napkin, he sketched his idea for
expanding copyright for authors. He came away with funding for a meeting at the
Berkman Center and, later, a $100,000 commitment to launch the IP conservancy;
the Center for the Public Domain eventually put up $1 million to get the
project going, well before other funders saw the promise of the idea. Racine
wanted her new center to be associated with “a project that has broad vision,
credibility, range and staying power.” She saw Lessig's project as having all
of those things.[^135] The grant was based more on the concept than a specific
plan, however. At the time it was not entirely clear if the project would own
and manage digital works, host Web services that made things freely available,
or provide legal and software tools — or something else.[^136] There was,
nonetheless, a great sense of mission and urgency to get under way.

Interestingly, two similar initiatives were also in the early stages of
development. The Knowledge Conservancy, led by David Bearman at Carnegie Mellon
University in Pittsburgh, had a similar model of accepting donations of
materials and making them available online. It focused more on sponsorship
donations and memberships, while Lessig's group was more oriented toward legal
research and Web hosting of works. Another project, OpenCulture.org, planned to
compensate artists for contributions to the public domain, but apparently it
never took off.[^137] Lessig and his group were not averse to joining forces
with others, but they were intent on vetting their own business model, such as
it was, before joining anyone else's venture.

One turning point came in January 2001 after Saltzman had met with several
lawyers at Wilmer, Cutler & Pickering, a prominent law firm in Washington,
D.C.[^138] After conversations with attorneys David Johnson and Michael W.
Carroll, it became clear that a nonprofit trust managing donated material could
face considerable liability if it turned out that the donors did not actually
own the works. To explore this issue, Carroll produced a much-praised legal
memo that raised a red flag: “What if we were fools, and the person who gave
us the rights [to a work] actually never had the rights and suddenly we get
sued for infringement?” asked Carroll.[^139] One successful lawsuit could
sink the whole enterprise.

The project was caught in a conundrum. It wanted to legalize a whole set of
social practices for sharing and reusing creative works — but establishing a
content intermediary for that purpose appeared to be financially prohibitive
under the law. It could be hugely expensive to clear titles and indemnify the
organization and future users against copyright infringement risks.

For a few months, various people in Lessig's orbit suggested complicated
schemes to try to finesse the legal problems. For example, one way that the
conservancy could reduce its liability would be to simply point to the Web
locations of public-domain materials, in the style of Napster's centralized
index of songs. This would also avoid the nuisance and expense of clearing
titles on thousands of works. Another idea was to create a “three zone
system” of content — Zone A for content that the conservancy owned and
licensed; Zone B for content that was merely hosted at the conservancy site
with no copyright representations; and Zone C, a simple search engine with
links to public-domain content. Each of these zones, in turn, raised a flurry
of complicated, speculative legal issues.[^140]

None of the proposed alternatives got much traction, especially when Saltzman
took a closer look at the realities of tax deductions for donors. Saltzman came
to see that tax breaks would have very little incentive value for most
potential donors, and establishing the cash value of donations would be
difficult in any case. Moreover, if donors were getting little in return for
their donations, they would be wary of signing a form indemnifying the
conservancy against legal liability. On top of all this, Saltzman, like others,
had misgiving about “the idea of the federal treasury contributing public
money [in the form of tax expenditures].” In short, the conservancy approach
seemed plagued with many complicated and perhaps insoluble problems.

As if to keep the pot boiling, newcomers kept adding new thoughts. Two leading
thinkers about the public domain in science, Paul Uhlir and Jerome H. Reichman,
urged that the group expand its mission to include scientific research and take
an international perspective.[^141] (Uhlir directs the international scientific
and technical information programs at the National Academy of Sciences/
National Research Council; Reichman is an intellectual property professor at
Duke Law School.) Both were keenly aware of the dangers to scientific progress
if copyright and patent protection continued to expand.

In January 2001, the caucus reached one point of consensus— that the primary
function of this commons should be “to facilitate free/low-cost public use of
original works.” It also agreed upon a name. Asked to vote on a name from a
list that included IP Commons, Dot-commons, Sui Generous, IP Conservancy, and
Public Works, Saltzman piped up, “May I suggest another name? CREATIVE
COMMONS.” When the final poll results were counted, Creative Commons was the
clear winner with five votes, with one vote apiece for the remaining names. A
later poll pitted “The Constitution's Commons” against “Creative
Commons” (CC) in a final runoff. The vote tally is lost to history, but we do
know which name prevailed.[^142]

Viewpoints quickly diverged on how a commons ought to be structured and what
metrics of success should be used. Should it seek to maximize the number of
donations or the number of downloads? Should it develop quality holdings in a
given field or provide the widest possible breadth of content? Should it focus
on social interaction and creative reuses of works? Should the focus be on
producers or consumers of intellectual property? Should the organization focus
on individuals or institutions? And how would it be different from other rights
clearance organizations and content archives? The group seemed mired in a great
cloud of uncertainty.

For the next nine months, the group intensified its debate about how to build
the envisioned conservancy. After law student Dotan Oliar sketched out possible
“business models,” Saltzman persuaded a friend at McKinsey & Company, the
consulting firm, to provide a pro bono assessment.[^143] “The McKinsey folks
were very skeptical and, I think, had a hard time fitting this into their
[business] framework,” recalled one student at the meeting, Chris Babbitt.
After the meeting, he was convinced that Creative Commons could not possibly
host a content commons: “It would just be huge amounts of material, huge
costs, and we didn't have the money for that.” [^144]

Feeling the need to force some concrete decisions, Saltzman and Lessig convened
twenty-eight people for an all-day meeting in Hauser Hall at Harvard Law
School, on May 11, 2001, to hash out plans. “What we're trying to do here is
/brand the public domain/,” Lessig said. A briefing book prepared by Chris
Babbitt posed a pivotal question to the group: Should Creative Commons be
structured as a centralized Web site or as an distributed, open-source
licensing protocol that would allow content to be spread across cyberspace? The
centralized model could be “an eBay for opensource IP” or a more
niche-based commons for out-of-print books, film, or poetry. A mock Web site
was actually prepared to illustrate the scenario. The home page read: “The
member sites listed on the CommonExchange have been certified by Creative
Commons to offer high-quality, non-infringing content on an unrestricted basis.
Please feel free to use and pass these works along to others. We invite you to
donate works of your own to help maintain the digital Commons.”[^145]

The distributed commons model would resemble the Chicago Mercantile Exchange or
the New York Stock Exchange — “a trusted matchmaker to facilitate the
transaction of securing rights,” according to the briefing book. “Just as
corporations or commodities producers must meet certain criteria before they
are listed on the Exchange, we could condition ‘listing' in the Commons on
similar criteria, albeit reflecting open source rather than financial
values.”[^146] The virtue of the distributed model was that it would shift
costs, quality control, and digitization to users. Creative Commons would serve
mostly as a credentialing service and facilitator. On the other hand, giving up
control would be fraught with peril — and what if Creative Commons'
intentions were ignored?

Several participants remember Lessig, Nesson, and Zittrain pushing for the
distributed model, which seemed a bolder and riskier option. “Larry was the
lead advocate for a distributed commons, where it would be focused on a license
mechanism that we then would release to the world, and we let the world do with
it what it will,” one attendee recalled. “At the time, I think, XML-type
capabilities were just coming around, and Larry was very confident that that
was the direction to go.”[^147] XML, or Extensible Markup Language, is a
programming language that uses self-created “tags” that help Internet users
aggregate and share digital content residing on different computer systems.
Lessig envisioned XML tags embedded in any Creative Commons–licensed work,
which could then be used to identify shareable content on the Internet.

This perspective carried the day, and the “conservancy” model of the
commons was formally abandoned. CC would serve as a licensing agent. The
licenses would enable authors' works to be made available online in an easy,
low-cost way without the full restrictions of copyright law. A standardized set
of licenses would overcome the ambiguities of the fair use doctrine without
overriding it. Creators could voluntarily forfeit certain copyright rights in
advance— and signal that choice — so that others could freely reuse, share,
and distribute CC-licensed works.

Jonathan Zittrain remembers being skeptical at first: “So this whole thing is
just about some tags? It's about /licensing/? How boring.” Upon reflection,
however, he saw the value of CC licensing as a way to create a new default.
“As soon as you realize — ‘Well, wait a minute! It's just about authors
being able to express their desires!'”[^148]

More than a menu of individual choices, the licenses would constitute an
embryonic cultural order — a “constitutional system” to direct how text,
images, and music could circulate in the online world, based on authors'
individual choices. But the new focus on licenses raised its own set of novel
quandaries. What options should an author be able to choose? What suite of
licenses made sense? While licensing terms may be boring and legalistic, the
architecture could have potentially profound implications for cultural freedom
— which is why the legal minds involved in the licenses spent so much time
arguing seemingly obscure points.

However these debates were resolved, everyone agreed that it was time to
incorporate Creative Commons as a nonprofit group, assemble a board, recruit a
chief executive officer, and of course raise more money. The stated goal: “to
expand the shrinking public domain, to strengthen the social values of sharing,
of openness and of advancing knowledge and individual creativity.”[^149]

There was a certain audacity if not unreality to the whole venture. Law
professors don't go around inventing ambitious public projects to revamp the
social applications of copyright law. They don't generally muck around with
software, contract law, and artists to build an imagined “sharing economy.”
“There was always this lingering suspicion in the back of my mind,”
recalled Babbitt in 2006, “that it [Creative Commons] would be kind of a rich
man's folly, and this would just be some little thing — a niche experiment
— that really wouldn't turn out to have merited the sort of sustained
interest of this high-caliber group of people.”[^150]

CRAFTING THE LICENSES
.....................

If Creative Commons licenses were going to enable artists to determine future
uses of their works — on less restrictive terms than copyright law — what
did actual artists think of the whole idea? To get a crude baseline of opinion,
Laura Bjorkland, a friend of Lessig's and manager of a used-book store in
Salem, Massachusetts, conducted an unscientific survey. She asked about a dozen
writers, photographers, painters, filmmakers, and a sculptor if they would be
interested in donating their works to a commons, or using material from one?
Most of them replied, “I've never even /thought/ of this before. . .
.”[^151]

A classical composer said he “loved the idea of a Nigerian high school
chamber group playing one of my string quartets without paying royalties . . .
but I would not want a film studio or pop song writer using one of my themes on
a commercial project, even if my name's attached, without royalties.” Some
artists worried about others making money off derivatives of their work. Many
complained that artists earn so little anyway, why should they start giving
away their work? Others were reluctant to see their work altered or used for
violence or pornography. Photographers and visual artists found it “a little
scary” to let their signature style be used by anyone.

In short, there was no stampede for starting a public-domain conservancy or a
set of licenses. Some worried that the CC licenses would be a “case of
innovation where's there's no current demand.” Another person pointed out,
more hopefully, that it could be a case of “changing the market demand with a
new model.”[^152]

The Lessig caucus was clearly struggling with how best to engage with the
networked environment. Napster had demonstrated that, in the dawning Internet
age, creativity would increasingly be born, distributed, and viewed on the Web;
print and mass media would be secondary venues. For a society still deeply
rooted in print and mass media, this was a difficult concept to grasp. But
Michael Carroll, the Washington lawyer who had earlier vetted the conservancy's
liability issues, shrewdly saw network dynamics as a potentially powerful tool
for building new types of digital commons. In 2001, he had noticed how a bit of
Internet folk art had become an overnight sensation. Mike Collins, an amateur
cartoonist from Elmira, New York, had posted the cartoon below on Taterbrains,
a Web site.[^153] The image suddenly rocketed throughout the cyberlandscape.
Everyone was copying it and sharing it with friends.

vs_db_1.png [link: <http://viralspiral.cc/>]

Carroll observed:

  [Collins] distributed his design initially without a motive to profit from
  it. But the scale of distribution surpassed what he imagined, and in a
  subsequent interview he expressed some resentment over those who had made
  money from T-shirts and other paraphernalia using his design. But he appears
  to have taken no actions to enforce his copyright, the notice
  notwithstanding. Copyright lawyers would consider the unlicensed distribution
  of this work “leakage” — that is, a violation of law but not worth
  pursuing.

  But if we could take steps to make it cheap, easy and desirable for the Mike
  Collinses of the world to stick a CC tag on something like this before
  sending it out, “leakage” becomes legal, changing the terms of the
  debate.[^154]

CC tags could make nonproprietary culture the default, reversing the
presumption of copyright law. Everyone agreed with this general approach, but
implementing it was rife with difficult questions. As Saltzman recalled:
“What kind of relationship did we want to encourage between the
creator/licensor and the user? Should it be totally automated? Should it invite
some back-and-forth? Should there be a requirement that licensors provide
contact information?”[^155] The General Public License for software had shown
the feasibility of a license for safeguarding a commons of shared code. Could
it work in other creative sectors? It would be critical to strike the right
balance. As law student Chris Babbitt put it, “Too little protection for the
donor's interests and no one will donate; too little room for the users to use
the work, and the service is useless.”[^156]

If there were going to be several licenses, the next question was how many, and
of what sort? There are many different types of creativity, after all. Should
each one have its own set of special licenses? The Berkman conclave agreed that
there should be a publicdomain license enabling creators to grant a
nonexclusive, royaltyfree license on their works, without the viral conditions
of the GPL. As for other licenses, five ideas were put on the table for
consideration: a license authorizing free reuses of a work so long as proper
attribution is given to the author; a license authorizing noncommercial uses;
and a license authorizing free reuses but prohibiting derivative uses. Other
suggestions included a license authorizing academic uses only and a “timed
donations” license, which would allow an artist to revoke a work from the
commons after a stipulated number of years.[^157] Neither of these two licenses
gained support from the group.

There were also lots of open questions about how to structure the specific
terms of the licenses. Should they be perpetual? Will the licensor be liable
for “downstream” uses of a work that are deemed an infringement? Will
licensors be required to identify themselves? Should licensors be able to add
their own separate warranties and representations? Crafting the licenses meant
going beyond the abstract rhetoric of the commons. These licenses had to be
serious, operational legal instruments that courts would recognize as valid.

Another concern was making the new CC licenses compatible with existing
licenses seeking similar goals. MIT had produced the first such license for its
OpenCourseWare initiative, which allows Internet users to use the university's
curricula and syllabi (see chapter 12). To ensure that CC- and MIT-licensed
content would be compatible, the CC lawyers deliberately wrote a license that
would meet MIT's needs. Another license, the GNU Free Documentation License
(FDL), was being used on Wikipedia, among other online sites. But the FDL,
originally intended for software documentation materials, was incompatible with
the CC licenses. Stallman refused to alter the FDL, and Wikpedia was already
under way and committed to the FDL. This quirk of history meant that Wikipedia
content and CC-licensed content could not legally be combined. As we will see
in chapter 9, this was the beginning of a rancorous schism in the free culture
world, and the beginning of a heated philosophical/ political debate over which
licenses truly promote “freedom.”

As this overview suggests, licensing complexities can quickly soar out of
control and become overwhelming. Yet the very point of the Creative Commons
licenses was to simplify the sharing and reuse of digital material. CC planners
wanted to help ordinary people bypass the layers of mind-numbing legalese that
make copyright law so impenetrable and inaccessible. The Creative Commons was
all about empowering individuals and avoiding lawyers. A proliferation of
licensing choices would only lead to license incompatibilities, a Balkanization
of content on the Internet, and more lawyers. Sharing and interoperability go
together, as Stallman's early experiences with his Emacs Commune showed.

Somehow, therefore, the licenses had to thread three needles at once. They
needed to align (1) the technical dynamics of the Internet with (2) the legal
realities of copyright law and (3) the everyday needs of people. The ingenious
solution was to create licenses on three layers: a “lawyer-readable”
license that could stand up in court, a “human-readable” license that could
be understood by ordinary people, and a “machine-readable” license that
could be recognized by search engines and other software on the Internet. Each
“layer” expressed the same license terms in a different way — an
unexpected twist on Lessig's concern for “fidelity in translation.” The
formal license was called the “Legal Code” (or “legal source code”);
the machine-readable translation of the license was called “Digital Code”;
and the plain-language summary of the license, with corresponding icons, was
the “Commons Deed” (or the “happy deed”).

BRANDING THE PUBLIC DOMAIN IN CODE
..................................

As the lawyers brooded and debated the licensing terms, another complicated
debate was unfolding on the tech side of CC: how to brand the public domain in
software code. If code is law, then it was imperative for Creative Commons to
find some way to represent CC licenses in digital code. Abelson, Lessig, and
others understood that the future of the Internet was likely to include all
sorts of automated, computer-to-computer functions. One of the best ways to
promote a new body of “free content” on the Web, therefore, would be to
develop machine-readable code that could be inserted into any digital artifact
using a Creative Commons license. That way, search engines could more easily
identify CC-licensed works by their terms of use, and help assemble a
functionally accessible oeuvre of digital content that was free to use.

At this time, in 2001, the founder of the World Wide Web, Tim Berners-Lee, and
others at the World Wide Web Consortium, based at MIT, were trying to
conceptualize the protocols for a new “logical layer” of code on top of the
World Wide Web. They called it the Semantic Web. The idea is to enable people
to identify and retrieve information that is strewn across the Internet but not
readily located through conventional computer searches. Through a software
format known as RDF/XML,[^*6] digital content could be tagged with
machine-readable statements that would in effect say, “This database contains
information about x and y.” Through Semantic Web protocols and metatags on
content, it would be possible to conduct searches across many types of digital
content — Web pages, databases, software programs, even digital sensors —
that could yield highly specific and useful results.

Unfortunately, progress in developing the Semantic Web has been bogged down in
years of technical disagreement and indifference among the larger Web
community. Some critics argue that the project has stalled because it was being
driven by a small corps of elite software theorists focused on databases, and
not by a wider pool of decentralized Web practitioners. In any case, the
Creative Commons became one of the first test cases of trying to implement
RDF/XML for the Semantic Web.[^158] The project was led initially by Lisa Rein,
a thirty-three-year-old data modeler who met Lessig at an O'Reilly open-source
software conference. Lessig hired her as CC's first technical director in late
2001 to embed the CC legal licenses in machine-readable formats.

Writing the XML code was not so difficult, said Rein; the real challenge was
“deciding what needed to be included and how you represent the licenses as
simply as possible.”[^159] This required the lawyers and the techies to have
intense dialogues about how the law should be faithfully translated into
software code, and vice versa. Once again, there were complicated problems to
sort through: Should there be a central database of CC-licensed content? How
could machine-readable code be adapted if the legal licenses were later
modified?

Rein got an unexpected assist in the project from programming whiz Aaron
Swartz, who had heard about Creative Commons and volunteered to help write the
RDF/XML code. Swartz was an esteemed member of the RDF core working group at
the World Wide Web Consortium (W3C), and so was intimately involved in Semantic
Web deliberations. He was also a fifteen-year-old junior high school student
living with his parents in Chicago. “I remember these moments when I was
sitting in the locker room, typing on my laptop, in these [W3C] debates, and
having to close it because the bell rang and I had to get back to class,”
Swartz recalled. At CC, he was given the title of “Volunteer Metadata
Coordinator.” His job was “to design the RDF schema and what the XML
documents would look like, and work that out with my friends at the W3C and get
their approval on things.”[^160] For his troubles, Swartz received an in-kind
donation of a laptop computer and travel expenses, rather than a salary. “At
the time, I felt bad,” said Swartz. “They were a nonprofit doing work I
believe in. I didn't feel I should be taking their money when I didn't need
it.” With later help from Ben Adida, the CC team managed to develop an RDF
that could attach CC licenses to Web pages. But since the Semantic Web
protocols were still in flux, and not widely used, the effort amounted to a
speculative gamble on future and widespread adoption of those protocols.

Although inspired by the Semantic Web and by Lessig's analysis in /Code/, the
RDF/XML coding was also provoked by the growing specter of digital rights
management (DRM), the reviled systems used by film and music companies to lock
up their content. The Creative Commons dreamed of developing an “anti-DRM”
code to express the idea, “This content is and shall remain free.”
Professor Hal Abelson remembered that “we even used the phrase, ‘DRM of the
public domain.'”[^161] The coinage that Lessig later popularized is
“digital rights expression” — metadata that indicate that a digital
object can be shared and reused. There was a passing fear that CC's digital
rights expression code might infringe on DRM patents; one company known for its
aggressive patent defense raised concerns. But once it was made clear that the
CC's RDF code amounted to a label, and did not execute online rights on a
person's computer, the problem disappeared.

The machine-readable CC licenses were one of the first major buildouts of RDF
protocols. Swartz ruefully recalled the reaction of his friends at W3C: “I
got the sense that they thought it was sort of a silly project, that they were
thinking about bigger and longer-term things.” Adida, who later replaced
Swartz as the CC representative at the W3C, played a major role in helping
develop the metatags and protocols.

The RDF/XML coding was part of a larger CC strategy to brand the public domain
via software code. Since RDF code alone is like a nail without a hammer,
Creative Commons decided to develop a specialized search engine so that
Internet users could locate CC-licensed content. Without such a search engine,
Lessig said in April 2002, “there will be no way to demonstrate that we've
produced anything useful.”[^162] Swartz, who was not involved in the project,
said, “I was impressed that they did it, because it was probably the biggest
programming job I'd seen them do at the time.” In the meantime, the CC began
a series of overtures to Google and Yahoo in an attempt to get their search
engines to search for CC-licensed content. After years of lukewarm interest,
both Google and Yahoo added CC-search capabilities in 2005. Creative Commons
also nurtured the hope that once enough content contained CC metadata, software
developers would develop new applications to let people browse, use, and
distribute CC-tagged content.

THE ACTION SHIFTS TO PALO ALTO
..............................

By the fall of 2001, Creative Commons was still an idea without definition. The
project gained new momentum in September 2001 when Lessig hired a former
student, Molly Shaffer Van Houweling, to be the first director of the
organization. Van Houweling, a sophisticated yet plainspoken law scholar with
strong executive skills, had just finished clerking for Supreme Court justice
David Souter. She set about incorporating the Creative Commons, organizing the
board, building a Web site, and hammering out final versions of the licenses.

Once a key foundation grant was secured — $1 million from the Center for the
Public Domain — the Creative Commons was incorporated in Massachusetts (home
to many key backers of the project) on December 21, 2001. The first board
members included several legal scholars (Boyle, Carroll, Lessig), a computer
scientist (Abelson), two filmmakers (Saltzman and Davis Guggenheim, a friend of
Lessig's), and a Web publisher (Eldred). Charged with breathing life into a
fragile idea, Van Houweling settled into a small office on the third floor of
Stanford Law School (before the project was reassigned to basement offices).

In January 2002, Glenn Otis Brown, a lawyer and former student of Lessig's, was
hired as assistant director. Brown had been a law student at Harvard Law
School, where he had known Van Houweling and taken a constitutional law course
from Lessig. An affable Texan who had flirted with a journalism career, Brown
had just finished a year of clerking for a circuit court judge. He was due to
start a job in New York City the following week when he got a call from Van
Houweling. “She and Larry were starting something to do with copyright at
Stanford,” recalled Brown. “I knew pretty much nothing else about it except
it was a nonprofit and it was going to be a fulltime job. . . . The next thing
I knew, I was moving to California.”[^163]

Lessig, Van Houweling, and Brown took the menu of licenses proposed by two
graduate students, Dotan Oliar and Oren Bracha, and sought to refine them and
make them as legally bulletproof as possible.[^164] They were torn about the
process to adopt. “We didn't want to do a collective drafting process with
the entire Internet community,” said Van Houweling. “That didn't seem
practical. And yet we were a little nervous, I think, about not knowing what
our potential user base would want to use.” Lessig was unfazed. Release of
the licenses “isn't going to be like a movie premiere,” he told Van
Houweling, but more of an evolutionary process. The idea was to get the
licenses in circulation, monitor their progress, and make changes as
necessary.[^165]

Two of the most prestigious law firms in Silicon Valley, Cooley Godward Kronish
and Wilson, Sonsini, offered pro bono legal assistance to the effort. Attorney
John Brockland, an expert in opensource software licenses at Cooley Godward and
a former student of Lessig's, was the architect of the final licenses, assisted
by Catherine Kirkman, a licensing attorney at Wilson, Sonsini. Brockland
recalled, “One of the drafting challenges was to write something that could
be broadly useful across a wide range of copyrighted works and would not be
tied to particular nuances of the way the copyright statute works.”[^166]
Most copyright licenses are drafted for specific clients and particular
circumstances, not for the general public and all types of copyrighted works.

Much of the discussion, said Van Houweling, “revolved around the values that
we wanted to embed in the licenses, and what were the outer limits of those
values?” Ultimately, she said, “we opted for a menu of licenses that was
weighted toward the nonproprietary [content]. . . . We wanted to subsidize a
certain set of choices that are otherwise underserved.”[^167] The point was
to facilitate the rise of a sharing culture, after all, not to replicate the
baroque dysfunctions of copyright law.

Since the CC licenses were trying to articulate a new “middle ground” of
voluntary choices for sharing, it had to grapple with all sorts of fine legal
complexities. How exactly should they define a derivative work? What should be
considered a noncommercial reuse of a work? Can you dedicate a work to the
public domain?

Some artists felt that they ought to be able to prohibit derivative uses of
their works in pornography or hate speech. Hal Abelson adamantly disagreed. If
the licenses had an “offensive uses” clause, as either a standard or
optional term, it would open up a can of worms and put Creative Commons on the
side of censors. That view readily prevailed.

A primary concern was anticipating how the licenses might be interpreted by the
courts. Wendy Seltzer was worried that the CC licenses might become entangled
with court cases involving the fair use doctrine. She wanted to make sure that
the CC licenses were not seen as limiting or waiving a person's fair use rights
in any way. Her concern, shared by many others, resulted in an explicit
disclaimer stating that intention. “I'm really glad that we did that,”
recalled Glenn Brown, then the assistant director of CC, “because we ended up
pointing to that over and over and over again — to make clear that this was
something that went above and beyond fair use.”[^168]

To ensure that the licenses would be enforceable, the CC lawyers built on the
same legal base as the GPL; the licenses were crafted not as contracts, but as
conditional permissions based on copyright law. A contract requires that the
licensee have the opportunity to accept or reject the terms of an agreement,
which would not be the case here. A conditional permission, by contrast, is the
legal prerogative of a copyright holder. She is simply offering advance
permission to use a CC-licensed work (to share, modify, distribute, etc.) so
long as the specified terms are respected.

Countless lawyerly refinements of a very technical nature were made to the
licenses to ensure that they would be specific as needed, vague enough to be
versatile, and rigorous enough to survive a court's scrutiny.[^169]

The first set of licenses, version 1.0, was completed in the spring of 2002 and
included eleven choices. The six basic licenses, listed here in order of least
restrictive to most restrictive, included:

*Attribution (BY).* Authorizes free reuses (download, distribution,
modifications, commercial uses, etc.) so long as the author is credited for the
original creation.

*ShareAlike (SA).* Authorizes free reuses so long as credit is given and the
new work is licensed under the same terms.

*No Derivatives (ND).* Authorizes free reuses so long as the new work is
unchanged and in whole.

*NonCommercial (NC).* Authorizes free reuses so long as they are not commercial
in nature.

*NonCommercial ShareAlike (NC-SA).* Requires free reuses so long as the new
work is passed along on the identical terms as the original work (so, for
example, works that use a NonCommercial ShareAlike work will also have to be
distributed as NonCommercial ShareAlike works).

*NonCommercial No Derivatives (NC-ND).* Authorizes free reuses so long as
credit is given, no changes are made, the work is kept intact, and it is not
used commercially. This is the most restrictive CC license.

Because each of these six basic choices can be combined with other CC licenses,
copyright holders had five additional choices:

*Attribution-ShareAlike (BY-SA).* Authorizes free reuses so long as the author
is credited and the new work is licensed under the same terms.

*Attribution-NonCommercial (BY-NC).* Authorizes free reuses so long as the
author is credited and the new work is used for noncommercial purposes.

*Attribution NonCommercial-ShareAlike (BY-NCSA).* Authorizes free reuses so
long as the author is credited, the new work is used for noncommercial
purposes, and the new work is passed along using this same license.

*Attribution-No Derivatives (BY-ND).* Authorizes free reuses so long as the
author is credited and the new work is unchanged and in whole.

*Attribution No Derivatives-ShareAlike (BY-ND-SA).* Authorizes free reuses so
long as the author is credited, the new work is unchanged and in whole, and the
new work is passed along using this same license.

It soon became clear that very few people were choosing any of the five
licenses that did not require attribution of the author (the SA, ND, NC, NC-SA,
and NC-ND licenses). So in May 2004 Creative Commons decided to “retire”
those licenses, leaving the six most commonly used ones today (BY, BY-SA,
BY-NC, BY-NC-SA, BY-ND, and BY-ND-SA).

Still another choice was offered to copyright holders, a “public domain
dedication,” which is not a license so much as “an overt act of
relinquishment in perpetuity” of any rights in the work. The public domain
dedication places no restrictions whatsoever on subsequent reuses of the work.

To the first-time user, the licenses may seem a little daunting.[^170] The full
implications of using one or another license are not immediately obvious. The
tagline for the licenses, “Some Rights Reserved,” while catchy, was not
really self-explanatory. This became the next big challenge to Creative
Commons, as we see in chapter 6: how to educate creators about a solution when
they may not have realized they even had a problem.

By December 2002, the three levels of code — legal, digital, and human —
had been coordinated and finalized as version 1.0. The organization was set to
go public, which it did at a splashy coming-out party in San Francisco. The
gala featured appearances by the likes of rapper DJ Spooky (an ardent advocate
for remix culture) and a London multimedia jam group, People Like Us. Lessig
proudly introduced the licenses as “delivering on our vision of promoting the
innovative reuse of all types of intellectual works, unlocking the potential of
sharing and transforming others' work.”[^171]

Perhaps the biggest surprise was a set of video testimonials from both ends of
the copyright spectrum — John Perry Barlow of Electronic Frontier Foundation
and Jack Valenti of the Motion Picture Association of America. With
uncharacteristic solemnity, Barlow said: “I personally think there is
something deeply oxymoronic about the term ‘intellectual property.' But as
long as we have set up a huge matrix of laws and social understandings that
traffic in that assumption, we have to meet the conditions as we have found
them and use what exists to preserve the human patrimony.” The silvermaned
Valenti saluted the “Lessig compact” that is both “respectful of, and
supports, copyright” while allowing people “to give up some of their
copyrighted material, or all of it, and put it on the creative commons for
others to view it or hear it.” “Larry, I hope that my supporting you in
this doesn't ruin your reputation,” Valenti joked.[^172]

Many copyfighters were not thrilled to have an arch-adversary like Valenti
praise their efforts at their moment of triumph. Yet that was a deliberate part
of Lessig's strategy: to assert a politically neutral middle ground from which
to remake the social landscape of creativity. The question raised in some
people's mind was whether something so politically unassailable could have
significant impact. Still others saw it as a welcome base upon which to build a
new sharing economy.

The CC launch party can be seen as a watershed moment in the struggle to
protect the public domain. It announced a novel gambit to transcend the
political impasse over copyright reform, a way to address copyright abuses
without getting embroiled in a pitched and unwinnable confrontation. It
legitimized all sorts of activities that had historically been seen as morally
problematic, if not illegal. While building on the idea of the public domain
developed over the preceding twenty years, Creative Commons inaugurated a new
story about the commons, creativity, and the value of sharing. Watching the
rocking party and savoring the hard work completed, Glenn Brown remembers a
friend musing to him, “I wonder if we'll see another legal hack like this in
our careers.”


----------------------------------------
5 NAVIGATING THE GREAT VALUE SHIFT
----------------------------------

/Amateurs discover new tools for creating value: open networks and
self-organized commons./

“It was never really clear to me what was going to happen after we launched
the licenses,” recalled Glenn Otis Brown. “Would our work be done?” The
intense push to craft the licenses and release them now over, Brown and his
colleagues were only too happy to ease up in their work. (Van Houweling had
left in 2002 to teach law; she is now at the University of California at
Berkeley.) Despite his enthusiasm for the licenses, Brown had his private
doubts about their future success. “To be honest, I was pretty scared,” he
said. “I was worried they were going to go nowhere, and that I was going to
be blamed for that.”[^173]

In January 2003, a month after the CC licenses were announced, however, the
project took on a new urgency. The Supreme Court handed down its /Eldred/
ruling, sending a clear signal that the courts were not much interested in
reforming copyright law. Soon after this crushing disappointment, Lessig began
to intensify his focus on the Creative Commons. “The pressure really
increased,” said Brown, “but that's also when things started to get a lot
more fun. That's when the staff started working on things /all the time/ and we
got a stable, permanent staff, instead of contractors.”

What began as a modest licensing experiment began to take on the character of a
permanent campaign. Working from the themes in /The Future of Ideas/, Lessig
came to see the Creative Commons as more than a nonprofit custodian of some
free public licenses; it was a champion for a bracing new vision of culture.
This broader orientation meant reaching out to various creative sectors and the
general public with messages that were both practical (“here's how to use the
licenses”) and idealistic (“you, too, can build a better world”).

The band of enterprising law scholars and techies who once saw their challenge
as one of bolstering the public domain began to widen their gaze to the vast
world of creativity and democratic culture. Social practice, not theory, became
the animating force in their work.

This meant reaching out to writers, musicians, filmmakers, photographers,
librarians, academics, and other creators. All faced worrisome threats to their
freedoms in the digital environment, as we saw in chapter 2. Lessig and the
small Creative Commons staff made it their job to speak to these threats,
promote the licenses, and set forth an alternative to the corporate media's
vision of culture.

“Our single, overarching aim,” said Lessig in December 2002, “is to build
the public domain, by building projects that expand the range of creative work
available for others to build upon.”[^174] In an attempt to credential the
licenses, the Creative Commons touted endorsements by a number of educational
institutions (MIT, Rice University, Stanford Law School), public-spirited tech
enterprises (iBiblio, the Internet Archive, O'Reilly & Associates), and
venturesome musicians (DJ Spooky, Roger McGuinn of the Byrds).

As if by spontaneous replication, people from far-flung corners of the Internet
began to use the licenses on their blogs, their MP3 music files, their
photographs, their books. Week after week, the Creative Commons's blog
trumpeted the new recruits — the blog for book designers (Foreword), the
database of metadata about music (MusicBrainz), the online storytelling Web
site (Fray), the 2004 presidential campaign of Dennis Kucinich.

But the larger challenge for Creative Commons was finding ways to reach new
constituencies who knew little about technology or copyright law. Why should
they bother to use a CC license? This was a major public education challenge.
Besides appearing at many conferences and cultivating press coverage, Glenn
Brown spent a lot of time developing a Web site that could explain the licenses
clearly. Great pains were taken to develop a precise, intuitive user interface
to help people learn about the licenses and choose the right one for them.
Copyright law was complicated enough; the CC licenses had to be seen as a
simple alternative.

Advertisers have plenty of trouble communicating the virtues of mouthwash in a
crowded public sphere. Could something as dry and forbidding as copyright law
ever be made lucid and even hip? Although not a trained marketer, Glenn Brown
had a knack for communicating things simply.Working with graphic designer Ryan
Junell and Web designer Matt Haughey, Brown developed a site that combined a
certain institutional authority with contemporary pizzazz. This style was on
abundant display in a series of jaunty and entertaining Flash animations that
explained the rationale for Creative Commons.

Junell designed the now-familiar CC logo as a deliberate counterpoint to the
copyright logo, ©. “I thought that Creative Commons should have something
like the copyright logo since it deals with the same stuff,” said Junell.
“It should be something really simple and pure.”[^175] Junell set his
sights on making the CC logo a standard, ubiquitous symbol. He hoped that it
would eventually be incorporated into the Unicode, an international registry
for every character in any language used in software, from % to ∆ to ≠.

In promoting its licenses, Creative Commons fashioned itself as a neutral,
respectable defender of individual choice. “Our tools are just that —
tools,” said Haughey, who was then developing the CC Web site. “Our model
intentionally depends on copyright holders to take responsibility for how they
use those tools. Or how they don't use them: If you're unsure and want to keep
your full copyright, fine. If you choose to allow others to re-use your work,
great.”[^176] While many CC users were enthusiastically bashing copyright
law, Lessig and the CC staff made it a point to defend the basic principles of
copyright law — while extolling the value of collaborative creativity and
sharing under CC licenses.

Despite praise by the heads of the Motion Picture Association of America and
the Recording Industry Association of America, the licenses nonetheless did
attract critics. Some in the music industry regarded the licenses as a Trojan
horse that would dupe unsuspecting artists. David Israelite, president and CEO
of the National Music Publishers' Association, told /Billboard/, “My concern
is that many who support Creative Commons also support a point of view that
would take away people's choices about what to do with their own
property.”[^177] /Billboard/ went on to cite the cautionary tale of a
songwriter who was being kept alive by his AIDS medications, thanks to the
royalties from a highly successful song. “No one should let artists give up
their rights,” said Andy Fraser of the rock group Free. Other critics, such
as John Dvorak of /PC Magazine/, called the CC licenses “humbug” and
accused them of adding “some artificial paperwork and complexity to the
mechanism [of copyright],” while weakening the rights that an author would
otherwise enjoy.[^178] Still others had cultural scores to settle and
criticized “anything advocated by clever, sleek young lawyers.”[^179]

Putting aside such quibbles and prejudices, the CC licenses seemed a benign
enough idea. Given its reliance on copyright law, how could any entertainment
lawyer object? Yet the real significance of the licenses was only appreciated
by those who realized that a Great Value Shift was kicking in. For them, the
licenses were a useful legal tool and cultural flag for building a new sharing
economy.

THE GREAT VALUE SHIFT
.....................

In retrospect, the CC licenses could not have been launched at a more
propitious moment. Networked culture was exploding in 2003. Broadband was
rapidly supplanting dial-up Internet access, enabling users to navigate the Web
and share information at much faster speeds. Prices for personal computers were
dropping even as computing speeds and memory capacity were soaring.
Sophisticated new software applications were enabling users to collaborate in
more powerful, user-friendly ways. The infrastructure for sharing was reaching
a flashpoint.

Put another way, the original promise of the Internet as a gift economy was
coming into its own. Originally built as a platform for efficient sharing among
academic researchers, the Internet by 2003 was being used by some 600 million
people worldwide.[^180] The open framework for sharing was no longer just a
plaything of technophiles and academics; it was now insinuated into most
significant corners of the economy and social life. As it scaled and grew new
muscles and limbs, the Internet began to radically change the ways in which
wealth is generated and allocated.

I call this the Great Value Shift — a deep structural change in how valuable
things are created for commerce and culture. The shift is not only a
fundamental shift in business strategy and organizational behavior, but in the
very definition of wealth. On the Internet, wealth is not just financial
wealth, nor is it necessarily privately held. Wealth generated through open
platforms is often /socially created value/ that is shared, evolving, and
nonmonetized. It hovers in the air, so to speak, accessible to everyone.

Creative Commons had the good fortune to introduce its licenses just as the
Great Value Shift was picking up momentum. The types of distributed innovation
first seen in free software were now popping up in every imaginable corner of
cyberspace. The social content was not just about listservs and newsgroups, but
instant messaging networks, Web logs, podcasts, wikis, social networking sites,
collaborative archives, online gaming communities, and much else.

“What we are seeing now,” wrote Yochai Benkler in his book, /The Wealth of
Networks/, “is the emergence of more effective collective action practices
that are decentralized but do not rely on either the price system or a
managerial structure for coordination.” Benkler's preferred term is
“commons-based peer production.” By that, he means systems that are
collaborative and non-proprietary, and based on “sharing resources and
outputs among widely distributed, loosely connected individuals who cooperate
with each other.”[^181]

Informal social relationships, working in the unregimented, free space of open
platforms, were beginning to change economic production and culture.
“Behaviors that were once on the periphery— social motivations,
cooperation, friendship, decency — move to the very core of economic life,”
Benkler argued.[^182] Money and markets do not necessarily control the
circulation of creativity; increasingly, online communities — large numbers
of people interacting with one another on open platforms — are the engines
that create value.

The CC licenses were launched at a moment when the new modes of value creation
were just gaining a foothold.

We do not yet have well-accepted theoretical models for understanding this new
“socioeconomic space”; the online environments are still so new, and much
is still in flux.[^183] But it has not escaped the notice of major corporations
that online social dynamics can result in some radically more effective models
for organizing employees and engaging with customers. A /BusinessWeek/ cover
story touted “The Power of Us” in June 2005, profiling the ways in which
companies like Procter & Gamble use mass collaboration for R&D; Hewlett-Packard
had created a virtual stock market among its staff to gather collective
estimates that have improved sales forecasts.[^184] The /Economist/ has written
about the “fortune of the commons” that can result when there are open
technical standards, and business professors such as Henry Chesbrough have
examined new “open business models.”[^185]

Before looking at the many creative sectors that have adopted the CC licenses
— the focus of chapter 6 — it helps to understand the Great Value Shift
that open networks have catalyzed. In one market after another, open networks
have helped new competitors slash all sorts of business costs while enhancing
their capacity to innovate and respond to changing consumer demand. Open
networks have also given rise to new types of social platforms on the Web,
often known as Web 2.0, which are making it economically attractive to serve
niche markets. This is the so-called Long Tail. Yet even these sweeping changes
in market structure are facing a qualitatively different kind of competition
— from the commons sector. It turns out that informal online communities
based on trust, reciprocity, and shared social norms can perform a great many
tasks more efficiently than markets, and with some measure of social pleasure
and fun.

THE ENDANGERED ECONOMICS OF CENTRALIZED MEDIA
.............................................

The dominant systems of communications in the twentieth century — radio,
broadcast and cable television, recorded music, theatrical film — required
large amounts of centralized capital, corporate management, and professional
control. These media have very different business models and practices, but
they all rely upon centralized control of capital and distribution to large,
fairly undifferentiated audiences. Each depends upon efficiencies derived from
high-volume sales and a limited spectrum of commercial choices.

Centralized Media also dictate certain economic and social identities for
people. There are “sellers,” who are the prime source of expertise,
innovation, and production, and there are “consumers,” who passively buy,
or don't buy, what is offered. Sellers mostly determine what choices are
offered to buyers, and they tend to have greater market power and information
than consumers. Interactions between sellers and consumers are mostly brief and
transactional; there is little ongoing conversation or relationship between
seller and buyer.

Much of the strength of the Centralized Media derives from its control of
critical “choke points” of product development and distribution. By
controlling the technical standards for a product, its retail distribution or
its brand identity, a company can maximize its competitive advantages and limit
competition. The high concentration of capital needed to communicate through a
Centralized Media outlet is itself a useful way to limit competition. No
surprise that only large, publicly traded corporations and rich individuals own
and control Centralized Media — and that their messages tend to be overtly
commercial or commercial-friendly.

While this paradigm is obviously quite attractive for those investors with a
piece of the action, it also entails some very large costs that are not readily
evident. Companies have to spend a lot on advertising to build a brand identity
that can enhance sales. Their “blockbuster” business model entails large
upfront costs in order to reap large financial returns. Centralized Media
require expensive systems for finding, recruiting, and developing stars; an
elaborate marketing apparatus to find and retain customers; and legal and
technological means to identify and prosecute “piracy” of creative works.

In a more static environment, this model worked fairly well. But as the
Internet revolution proceeded in the 2000s, distributed media started to
undercut the economic logic of Centralized Media. Your personal computer,
connected to other computers via inexpensive telecommunications and software,
can do things more cheaply. Distributed online media not only avoid the costly
overhead needed by Centralized Media, they can generate dynamic, interactive,
and sociable types of communication: /user-generated content!/ While this
amateur content is wildly variable in quality, it does have this virtue: it is
more culturally diverse and authentic than the homogenous, overproduced
programming of Centralized Media. And because distributed media are not
economically driven to amass large, undifferentiated audiences, the content can
be more idiosyncratic, passionate, and, in its own ways, creative. There is no
“fifty-seven channels and nothing on” problem. The problem is how to locate
what you want from among millions of choices.

For all these reasons — but mostly because of the economics— conventional
media are becoming more vulnerable to the most advanced Internet-based
competitors (Amazon, eBay, Google, Yahoo) as well as to new types of nonmarket
social production (e.g., Craigslist, Wikipedia, special-interest affinity
groups). We may even be approaching a point at which the historic cost
structures and risk management strategies of major media companies are no
longer sustainable. Some analysts fret about the long-term viability of
American newspapers, whose stock value fell by 42 percent, or $23 billion,
between 2005 and 2008. Broadcast and cable television have similar fears. They
worry, correctly, that Internet venues are siphoning away “eyeballs” by
providing more timely and convenient alternatives. While the amateur videos of
YouTube may not have the production quality of NBC, broadcast and cable
television cannot ignore an upstart platform that in 2006 was attracting more
than 100 million video downloads /per day/ and had a market valuation of $1.65
billion when bought by Google that year. No wonder Cable News Network co-hosted
a presidential debate with YouTube in 2007; it needed to reassert its cultural
relevance.

Large media companies are struggling to support some huge financial,
administrative, and marketing burdens simply to “tread water” and retain
some measure of their customary market dominance. This helps explain why
Centralized Media are so keenly focused on influencing Congress and the Federal
Communications Commission. They want to lock in competitive advantages through
regulation. (Consider the fierce battles over media ownership rules, spectrum
allocation policies, anticopying technology mandates such as the “broadcast
flag,” new copyright and trademark protections, must-carry rules for cable
operators, and on and on.) Centralized Media's great interest in securing legal
and regulatory privileges for themselves suggests their relative weakness and
decline. For them, it is easier to chase market advantages through political
interventions than through innovation, superior performance, and price.

THE ECONOMIC ADVANTAGES OF OPEN MEDIA
.....................................

By contrast, a profusion of new ventures are finding that a company can thrive
on the open networks of the Internet. Even a startup without brand recognition
or regulatory preferences can compete on the merits — price, quality,
responsiveness — against entrenched giants. They can leverage user-generated
content and the vast reservoir of value previously known as the public domain.
The success of thousands of new Internet businesses reflects an epochal shift
in the terms of competition — a Great Shift in how value is created.

The most significant shifts in the history of capitalism have come when new
mechanisms lower the costs of managing risk and serving latent market demand.
We are apparently in such a stage of economic transformation today. The genius
of the Renaissance banks and the Dutch insurance and shipping companies, for
example, was to reinvent the structure of markets through new financial and
legal instruments that enabled commercial trust and transparency to work on a
larger scale. The limited liability corporation was also a powerful innovation
for diversifying risk, coordinating people, and deploying capital on a scale
that was previously impossible.[^186]

In like fashion, the Internet is now facilitating some deep shifts in the cost
structures and scale of markets. Innovative online business models are
significantly undercutting the (expensive) cost structures of traditional
Centralized Media, and in the process sometimes creating entirely new sorts of
markets (search engine advertising, discounted travel, specialty niches) and
more open, competitive markets.

One of the most intriguing developments is a set of “open business models”
that shun closed, proprietary technical standards and content restrictions.
Unlike the classic industrial business models of the twentieth century, the new
open business models make money by aggressively insinuating themselves into
open networks. They are able to identify new trends, mobilize talent, interact
with customers, and develop customized products more rapidly than competitors.
They are also building ingenious new business models “on top of ” social
behaviors of online users. (See chapter 10.)

MySpace, for example, hosts a social network of more than 100 million
“friends” (a claim that, even if inflated by inactive user accounts, is
indisputably huge). eBay consolidated the world's garage sales and flea markets
into a more efficient market by developing Web-based software that
“manages” social trust and reputation and evolves with user interests.
Amazon has become a premier online retail Web site by hosting a platform open
to all sorts of online vendors and spurred by the recommendations and
collective purchase records of buyers. Google devised its famous PageRank
search algorithms to aggregate the Web-surfing “wisdom of the crowd,”
making online searches vastly more useful.

The basic point is that open media platforms are significantly reducing
business coordination and communication costs by leveraging people's natural
social behaviors in ways that conventional businesses simply cannot. Open Web
platforms allow large and diverse groups to organize themselves and their
projects more easily. Individuals have greater self-defined choice and the
capacity to express their own market demand; they need not be constrained by
the choices presented to them in the market. The Internet has opened up gushing
channels of virtual word of mouth, which is a more trusted form of consumer
information than advertising. Those companies with excellent products use
favorable word of mouth to reduce their marketing and distribution costs.
“Smart mobs” can elevate obscure bloggers and Web sites because they regard
them as more trustworthy, expert, and authentic (or entertaining) than those of
Centralized Media. Many conservatives now trust the Drudge Report and Free
Republic more than CBS News, just as many liberals trust DailyKos and
Huffington Post more than CBS News. Indeed, the very genre of “objective
journalism” — an artifact of the economic necessity of appealing to broad,
lowest-commondenominator audiences — is now in jeopardy.

As people migrate to the Web, advertising revenues for Centralized Media are
eroding further, setting off a scramble to devise new advertising vehicles to
reach fugitive Internet users. It is a chase that cannot be avoided because
that's where the eyeballs are. Moreover, the value proposition of open networks
is too attractive to ignore. But because that value proposition is so radically
different from conventional media — a company must revamp its organizational
structures, strategies, marketing, etc. —it raises some wrenching choices for
Centralized Media: Should they “go native” and let their products loose on
open networks? Or would that destroy their entrenched business models for
television shows, theatrical films, music CDs, and other content? The vast
infrastructure and business practices of Centralized Media cannot be summarily
abandoned, but neither can they remain economically tenable over the long haul
without significant changes. For now, Centralized Media are attempting an
ungainly straddle of both worlds.

WEB 2.0: A NEW BREED OF PARTICIPATORY MEDIA
...........................................

At the time, Eric Eldred's Web repository of public-domain books could be seen
as a modest little experiment. In retrospect, it can be seen as a dawning
cultural archetype. It betokened the power of the amateur.[^187] While
Centralized Media continue to have greater resources, talent, and political
clout, amateurs are finding their voices and new online venues. A significant
cultural emancipation is under way. Creative expression need no longer cater to
corporate gatekeepers and the imperatives of the mass market. A no-name amateur
can produce useful and influential work without having to go through New York,
Los Angeles, London, or Tokyo. The do-ityourself culture is flourishing and
expanding. With little money or marketing, anyone can launch a viral spiral
that, with enough luck and panache, can sweep across global culture.

It is only now dawning on some media chieftains that the biggest threat to
Centralized Media is not piracy or online competitors, but /nonmarket
alternatives/: you, me, and the online friends that we can attract. Hollywood
and record labels might rail against “pirates” and demand stronger
copyright protection, but the real longterm threat to their business models is
the migration of consumer attention to amateur creativity and social
communication. Social production on open networks has become a powerful
creative and economic force in its own right. Ordinary people can now find
their own voices and develop folk cultures of their own that may or may not use
the market.

After the tech bubble of 2000–2001 burst, the surviving techies and
entrepreneurs developed a remarkable range of cheap, versatile software that
took to heart the lessons of free software and open networks. Blogs, wikis,
social networking software, peer-to-peer file-sharing and metadata tools began
to migrate from the tech fringe to the mainstream. There have been many
conceptual frames and buzzwords associated with this new order — “smart
mobs” (Howard Rheingold), “the wisdom of crowds” (James Surowiecki),
“wikinomics” (Don Tapscott and Anthony D. Williams) — but the catchphrase
that has gained the most currency is “Web 2.0,” a term launched by Tim
O'Reilly in a canonical 2003 essay.[^188]

O'Reilly, a prominent publisher of books on open-source software, coined Web
2.0 to describe the fluid social dynamics that occur on open Web platforms —
wikis, blogs, social networking Web sites, and other open, collaborative
platforms — where people have the freedom to share and reuse work. Web 2.0
amounts to a worldview that celebrates open participation as a way to create
valuable collective resources. It regards open technical protocols and content
as the basis for this process (whether managed as a commons or a business), and
dismisses closed, proprietary regimes as both socially and economically
questionable. In essence, Web 2.0 honors socially created value as the basis
for value creation, which market players may or may not be able to exploit.

Blogging is more of a social medium than is generally supposed, for example. It
is not just the outburst of some ranter in his pajamas, as the stereotype has
it, but a social medium that connects people in new ways. Most blogs have a
blogroll — a list of admired blogs— which enables the readers of one blog
to identify other bloggers engaged in similar conversations. Permalinks —
stable Web addresses for blog content — enable people to make reliable Web
citations of content, which means that people can coalesce around a shared body
of work. And RSS feeds— “Really Simple Syndication” — allow people to
“subscribe” to individual blogs and Web sites, enabling them to keep
abreast of a sprawling set of communities.

The rise of blog-tracking companies like Technorati and Alexa has also helped
blogging become a durable social genre. These companies inventory and rank
blogs, and help people discover blogs for virtually any subject of interest —
cocktail mixing, high-energy physics, needlework design. By 2007, there were an
estimated 100 million blogs in existence (although many were inactive or
abandoned), making the blogosphere a powerful cultural force in its own right.
There was also a flood of online “news aggregators” — Web sites that
cherry-pick their own mix of pieces from the wire services, newspapers, Web
sites, blogs, and other online sources. With huge audiences, news aggregators
like the Drudge Report (1.6 million unique monthly visitors) and the Huffington
Post (773,000 visitors) have begun to rival major daily newspapers in reach and
influence.

Another seminal social innovation has been Wikipedia, a strange and wondrous
cultural eruption. Founded by Jimmy Wales and Larry Sanger in January 2001, the
English-language Wikipedia began to gain serious momentum in the months after
the CC licenses were released, and by early 2003 hosted 100,000 articles. (A
“wiki” is a special type of Web site that allows anyone who accesses it to
add or modify its contents.) After two years, Wikipedia had amassed a
collection of 400,000 articles and inspired the launch of affiliated Wikipedias
in more than 100 languages. In May 2008,

Wikipedia featured 10.2 million articles in 255 languages; 2.3 million of the
articles were in English. By harnessing the energies of tens of thousands of
volunteers to write an infinitely expandable “encyclopedia,” Wikipedia has
become the leading symbol for a radically new way of compiling and editing
knowledge.[^189] Remarkably, the Wikimedia Foundation, the umbrella
organization that funds Wikipedia and many sister projects, had fewer than
twenty paid employees in 2008 and a budget of less than $2 million.

Wikipedia has also spun off affiliated multilingual, free-content wikis on
various subjects. Wikispecies is compiling an inventory of the world's species,
Wikiquote is collecting thousands of memorable quotations, the Wikimedia
Commons is providing freely usable media files, and Wikibooks is assembling
open-content textbooks. Wiki software has been adopted by dozens of different
online communities, giving rise to scores of collaborative Web sites such as
Conservapedia (for American political conservatives), Intellipedia (for U.S.
intelligence agencies), Wookieepedia (for Star Wars fans), Wikitravel (for
travelers), and OpenWetWare (for biological researchers).

In the months following the launch of the CC licenses, peer-topeer (P2P) file
sharing was also expanding rapidly. Long associated with illicit sharing of
copyrighted music, P2P software in fact has many entirely legitimate uses in
science, education, and diverse creative sectors. One of the key attractions of
P2P software is its efficiency. It does not need to route information through
centralized servers; information can be rapidly shared by routing digital files
directly to participants, computer to computer, or by passing it through key
nodes in an on-the-fly manner. Even after the courts shut down Napster in 2002,
a variety of other P2P software applications — Grokster, Lime Wire, KaZaA,
Gnutella, BitTorrent — continued to facilitate online sharing and
collaboration. Some thirty-five companies, including Hollywood studios, are
sufficiently impressed with the efficiencies of P2P that they have licensed
BitTorrent technology to distribute their video content.

Peer-to-peer file sharing has also unleashed radically new types of knowledge
creation: volunteers who join the NASA Clickworkers project to count and
classify craters on Mars, “citizen scientists” who help compile an
interactive database of butterfly and bird sightings, or geneticists from
around the world who submit data to the Human Genome Project and share access
to the database.

Although the tech world and some Internet users had known about various
networking tools for years, the general public was largely in the dark until
the presidential campaign of Vermont governor Howard Dean in 2002 and 2003. At
the time, Dean was considered a long-shot antiwar candidate with little base
and little money. Within a few short months, however, thanks to Dean's
outspoken style and his campaign's skillful use of the Internet, he became the
front-runner in a field of twelve candidates. Dean did not use the Internet as
a simple publishing tool, but as a way to stimulate decentralized collaboration
and thereby organize a diverse community of supporters. The campaign was not
just about Dean, but about the participation of 640,000 volunteers who
virtually organized themselves through various online tools. The campaign
became a dynamic conversation between the candidate and voters — and
generated a gusher of more than $50 million, most of it donations of a hundred
dollars or less. So much was raised that Dean famously asked his supporters
whether he should forgo federal matching funds, and instead raise more money
from them. They agreed. The campaign ultimately imploded, of course, after his
famous “Dean's Scream” speech — itself a complex story — but what is
notable is how the Dean campaign vividly demonstrated the speed and power of
viral networks.

By 2003 many ordinary people knew about the Napster controversy, the record
industry's scorched-earth litigation tactics against consumers, and the Supreme
Court's ruling in the /Eldred/ case. So people welcomed blogs, wikis, and other
Web 2.0 applications as tools to emancipate themselves culturally. In the mass
media era, people had few tools or sufficient money to speak to the general
public or organize their own communities of interest. But now, using a
lightweight infrastructure of software code and telecommunications, people
could build stable online communities that reflected their own values and
social practices. No permission or payment necessary. No expensive capital
investments.

In many instances, amazingly, virtual communities are performing tasks that
existing markets are not performing as efficiently or with as much social trust
and goodwill. Craigslist, the free want-ad service that has significantly
undercut classified advertising in newspapers, is one of the more stellar
examples. In South Korea, OhmyNews.org uses thirty-six thousand
citizen-journalists to write up to two hundred online stories a day. The
publication is considered the sixth-most influential media outlet in Korea,
based on a national magazine poll. Countless specialty blogs are considered
more expert and timely sources of information and analysis than mainstream
newspapers and magazines.

Taken together, the new participatory media platforms constitute something new
under the sun — a globally accessible space that is both personal and public,
individual and social. The riot of unfiltered expression that has materialized
on the Internet is often dismissed as stupid, unreliable, and silly; or praised
as brilliant, stylish, and specialized; or simply accepted as idiosyncratic,
irregular, and local. It is all of these things, of course, and that is
precisely the point.

If print culture honors the ethic of “edit, then publish,” the Internet
inverts it: /anything/ can be made public . . . and then it is up to users to
become their own editors. On the Internet, people do not “consume” content,
they become active writers, editors, and critics in their own right. They use
search engines, news aggregators, and favorite bloggers to identify what they
want — or they create their own content, as desired. They are /participants/,
not merely informed consumers who choose what some professional editor offers
to them.

The Web 2.0 environment was quite hospitable for the spread of the CC licenses.
It enabled people to signal their willingness to share and their enthusiasm for
cool niche fare as opposed to massaudience kitsch.Members of online communities
could confidently share their work on wikis and collaborative Web sites,
knowing that no one could appropriate their content and take it private.
Socially, the licenses let people announce their social identity to others and
build a countercultural ethos of sharing. The ethos became hipper and more
attractive with every new antipiracy measure that Centralized Media instigated.

OPEN NETWORKS AND THE LONG TAIL
...............................

While technology and economics have been driving forces in shaping the new
participatory platforms, much of their appeal has been frankly cultural.
Amateur content on the Net may be raw and irregular, but it also tends to be
more interesting and authentic than the highly produced, homogenized fare of
commercial media. Some of it vastly outshines the lowest common denominator of
mass media. Again, the cheap connectivity of the Internet has been key. It has
made it possible for people with incredibly specialized interests to find one
another and organize themselves into niche communities. For closeted
homosexuals in repressive countries or isolated fans of the actor Wallace
Beery, the Internet has enabled them to find one another and mutually feed
their narrow interests. You name it, there are sites for it: the fans of
obscure musicians, the collectors of beer cans, Iranian exiles, kite flyers.
Freed of the economic imperative of attracting huge audiences with broad fare,
niche-driven Internet content is able to connect with people's personal
passions and interests: a powerful foundation not just for social communities,
but for durable markets.

This, truly, is one of the more profound effects of networking technologies:
the subversion of the “blockbuster” economics of the mass media. It is
becoming harder and more expensive for film studios and broadcast networks to
amass the huge, cross-demographic audiences that they once could. In the
networked environment, it turns out that a diversified set of niche markets can
be eminently profitable with lower-volume sales. While Centralized Media
require a supply-side “push” of content, the Internet enables a demand-side
“pull” of content by users. This radically reduces transaction costs and
enhances the economic appeal of niche production. It is easier and cheaper for
a company (or single creator) to “pull” niche audiences through word of
mouth than it is to pay for expensive “push” advertising campaigns.
Specialty interests and products that once were dismissed as too marginal or
idiosyncratic to be profitable can now flourish in small but robust “pull
markets.”[^190]

The term associated with this phenomenon is the “Long Tail” — the title
of a much-cited article by Chris Anderson in the October 2004 issue of /Wired/
magazine, later expanded into a book. Anderson explained the “grand
transition” now under way:

  For too long we've been suffering the tyranny of lowestcommon-denominator
  fare, subjected to brain-dead summer blockbusters and manufactured pop. Why?
  Economics. Many of our assumptions about popular taste are actually artifacts
  of poor supply-and-demand matching — a market response to inefficient
  distribution. . . . Hit-driven economics is a creation of an age without
  enough room to carry everything for everybody. Not enough shelf space for all
  the CDs, DVDs, and games produced. Not enough screens to show all the
  available movies. . . .[^191]

The “Long Tail” refers to the huge potential markets that can be created
for low-volume niche books, CD, DVDs, and other products. More than half of
Amazon's book sales, for example, come from books that rank below its top
130,000 titles. The implication is that “the market for books that are not
even sold in the average bookstore is larger than the market for those that
are,” writes Anderson. “In other words, the potential book market may be
twice as big as it appears to be, if only we can get over the economics of
scarcity.”

Unconstrained by the size and tastes of a local customer base or by limited
shelf space, online retailers such as Amazon, Netflix (DVDs), Rhapsody (music),
and iTunes (music) are showing that the Long Tail can be a very attractive
business model. These companies have developed new tools, such as collaborative
filtering software and user recommendations, to drive demand for lesser-known
titles at the far end of the Long Tail. This is just another instance of using
new technologies that leverage people's natural social dynamics, and in so
doing inventing new types of markets.

ANOTHER VEHICLE FOR NICHE COMMUNITIES: THE COMMONS
..................................................

If the Long Tail is a market vehicle for amassing niche communities, the
commons is the social analogue. A commons does not revolve around money and
market exchange, but around collective participation and shared values. It does
not use property rights and contracts in order to generate value; it uses gift
exchange and moral commitments to build a community of trust and common
purpose. Such communities, it turns out, can generate significant “wealth”
— as Richard Stallman demonstrated with free software.

Generically speaking, a commons is a governance regime for managing collective
resources sustainably and equitably. The commons is generally associated with
open fields, forests, and other natural resources that were collectively used
by villagers for their subsistence needs. During the “enclosure movement”
in medieval times and extending through the eighteenth century, British gentry
and entrepreneurs began to privatize the commons and convert its resources into
marketable commodities. Enclosures essentially dispossessed the commoners and
installed a new market regime to manage resources that were previously shared.
The commoners, unable to feed themselves or participate in markets, migrated to
the industrial cities of England to become the wage slaves and beggars who
populate Charles Dickens's novels.

Although markets tend to be more efficient than commons, they also tend to
focus on that which can be sold and converted into cash. Markets presume that
deserts and the public domain have no value because they have no marketable
output. Markets also presume that a commons cannot be sustained because
inevitably someone will overuse a shared resource — a practice known as
“free riding” —and ruin it. This is the famous “tragedy of the
commons” notion popularized by biologist Garret Hardin in a 1968 essay, which
described how a few farmers will let their sheep overgraze a common pasture and
so destroy it.

The “tragedy of the commons” metaphor has ossified into a truism of
neoclassical economics. It takes for granted that shared resources cannot be
managed sustainably, and that private property regimes are much better stewards
of resources. This prejudice was powerfully rebutted by political scientist
Elinor Ostrom in her noted 1990 book /Governing the Commons/, which marshaled
many empirical examples of natural resource commons that have been managed
responsibly for decades or even hundreds of years. Ostrom's scholarship has
since given rise to a great deal of academic study of commons, particularly
through the International Association for the Study of the Commons and the
Workshop in Political Theory and Policy Analysis at Indiana University. It also
inspired thinking about the commons by law scholars like Yochai Benkler,
Lawrence Lessig, and James Boyle, who saw close parallels with the commons as
they watched corporations use copyright law to enclose culture and information.

Cultural commons differ significantly from natural resource commons in this key
respect: they are not finite, depletable resources like pastures or forests.
Online commons tend to grow in value as more people participate, provided there
is sufficient governance and common technical standards to enable sharing.
Online commons, in short, are less susceptible to the dreaded “tragedy of the
commons” and, indeed, tend to be highly generative of value. Their output
does not get “used up” the way natural resources do.

The burden of Lessig's 2001 book /The Future of Ideas/ was to argue that the
Internet constitutes a great, underappreciated commons. It can serve as the
infrastructure for tremendous wealth and innovation if its “layers” — the
hardware, software, and content— remain sufficiently open and usable by all.
The problem, he warned with great prescience, is that policymakers are
generally blind to the value of the commons and markets are too eager to reap
short-term individual gains. They fail to appreciate that too much private
control at any “layer” of the Internet — through proprietary hardware or
software, or excessive copyright or patent protection — can stifle personal
freedom, market competition, and innovation. Lessig wanted to name the book
/Dot.commons/, but his publisher rejected it as too obscure.

One of the key advantages of treating key infrastructure (such as Internet
transmission protocols and computer operating systems) as a commons is that
people have the freedom to modify and improve them, with resulting benefits for
all. Innovation and competition can flourish more readily. At the content
layer, much of the appeal of the commons is the creative freedom, above and
beyond what the market may enable. Precisely because it is a commons, and not a
market, people's freedoms are not constrained by marketability. A commons is a
noncommercial, nongovernmental space that is free from corporate manipulations
and government meddling. It offers a qualitatively different type of experience
than the marketplace or government power. A commons tends to be more informal,
a place where people know you by name, and where your contributions are known
and welcomed. A commons based on relationships of trust and reciprocity can
undertake actions that a business organization requiring extreme control and
predictable performance cannot.

Precisely because a commons is open and not organized to maximize profit, its
members are often willing to experiment and innovate; new ideas can emerge from
the periphery. Value is created through a process that honors individual
self-selection for tasks, passionate engagement, serendipitous discovery,
experimental creativity, and peer-based recognition of achievement. The Open
Prosthetics Project, for example, invites anyone to contribute to the design of
a prosthetic limb and/or the specification of limbs that ought to be designed,
even if they don't know how to do it.[^192] This has generated such unexpected
innovations as limbs specifically adapted for rock climbers and an arm designed
for fishing. Athletes who engage in “extreme sports” — skiing, biking,
surfing — have been a rich source of ideas for new products, just as software
hackers are among the first to come up with innovative programming ideas.

Part of the value proposition of the commons at the content layer is that it
can host a more diverse range of expression — personal, social, and creative
— than the market, in part because it does not have the burden of having to
sustain costly overhead and sell a product. It has other goals — the personal
interests and whims of the commoners — and it can often meet those needs
inexpensively. Yet the commons does in fact generate many marketable
innovations, thanks to its open accessibility, the social relationships it
enables and the free sharing and circulation of work.

Seeing the success of online commons, Centralized Media have tried to fight
back by embracing elements of user participation. They invite audiences to vote
in polls (/American Idol/), publish lists of “most e-mailed” articles
(major newspapers), and direct radio listeners to their Web sites for more
information (National Public Radio). /Time/ magazine's choice for the “Person
of the Year” in 2006 — “You,” the primary driver of Web sites like
MySpace and YouTube — was a landmark moment in media history: with a pinched
smile and backhanded assertion of its cultural authority, Centralized Media
formally acknowledged its most powerful competitor, Decentralized Media!

Yet for all the celebration of “you” as the master of your own fate in
cyberspace, the question that is skirted is whether “you” can indeed retain
control of your stuff in a Centralized Media environment. The point of
conventional business models, after all, is to engineer a proprietary lock-in
of customers through technological dependence, binding contract terms,
frequent-buyer credits, brand loyalty, etc. That's how companies have
traditionally secured a more durable customer base and preempted competition.

But the commons is about securing user freedoms, and not necessarily about
prevailing in a market. Web 2.0 may or may not protect both concerns. Like the
commons, Web 2.0 relies upon user-generated content, network effects, and
bottom-up innovation. But Web 2.0 entrepreneurs, at the end of the day, need to
make money. Their sites need to adopt business practices that protect revenue
streams. Facebook is catering to advertisers, not users, when they sift through
masses of users' personal data in order to sell targeted advertising. MySpace
at one point refused to let its users connect to rival Web sites and outside
software “widgets.”[^193] In this sense, Web 2.0 media may be “open,”
but they are not necessarily “free,” as in freedom. Web 2.0 entrepreneurs
are more likely to focus on protecting their market advantages than advancing
user freedoms. The two issues may overlap substantially, but they are not
identical.

Science-fiction writer William Gibson once wrote, “The future is already
here; it's just not well-distributed yet.” That sums up the Great Value Shift
circa 2003. The efficiencies and affordances made possible by the Internet were
there. They were enabling all sorts of pioneers to build new business models,
new creative genres, and new online communities — but these innovations were
unevenly distributed. More to the point, their potential was unevenly
perceived, especially in many precincts of Washington officialdom and the
corporate world. The challenge for amateurs venturing onto open platforms was
to validate the new sorts of socially created value enabled by the Internet.


----------------------------------------
6 CREATORS TAKE CHARGE
----------------------

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DIY VIDEOS AND FILM
...................

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

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

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

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

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

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

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

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

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

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

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

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

LETTING THE MUSIC FLOW
......................

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MUSIC AS REMIX
..............

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

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

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

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

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

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

In 2005, Creative Commons issued the Sampling license as a way to let people
take pieces of a work for any purpose except advertising.[^226] It also
prohibited copying and distribution of the entire work.[^*7] For example, an
artist could take a snippet of music, a clip of film, or a piece of a
photograph, and use the sample in a new creation. Since its release, the
Sampling license has been criticized on philosophical grounds by some commoners
who say it does not truly enhance people's freedom because it prohibits copying
and distribution of the entire work. This concern reached serious enough
proportions that in 2007 Creative Commons “retired” the license; I'll
revisit this controversy in chapter 9.

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

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

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

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

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

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

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

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

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

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

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


----------------------------------------
7 THE MACHINE AND THE MOVEMENT
------------------------------

/An infrastructure of code gives rise to a movement for free culture./

When the CC licenses were first launched, many regarded them as a boring legal
license that may or may not really matter. The real surprise was how the CC
licenses became a focal object for organizing a movement. As more users began
to adopt the licenses in 2003 and 2004, they ceased being just a set of legal
permissions and became a cool social brand. The CC licenses and logo became
symbols of resistance against the highly controlled, heavily marketed, Big
Brother worldview that Hollywood and the record industry seem to embody. The CC
licenses offered a way to talk about one's legal and creative rights in the
Internet age, and to cite to a positive alternative — the sharing economy.
With no paid advertising to speak of, the CC logo came to symbolize an ethic
and identity, one that stood for artistic integrity, democratic transparency,
and innovation.

Glenn Otis Brown recalls how people spontaneously took up the license to
express their anger at the media establishment and their yearning for a more
wholesome alternative: “If you're frustrated with the way the world works
now, frustrated with the way the media is becoming more democratized but all
these laws aren't really facilitating that,” said Brown, “you can just cast
a little virtual vote for a different sort of copyright system by putting the
‘Some Rights Reserved' tag on your Web page. But also, practically, you can
help create pools of content that people can work with and make it so much
easier to participate.” Without really planning it, the Creative Commons
became much more than a system of free licenses for sharing. It became a symbol
for a movement. Communities of social practice began to organize themselves
around the CC project.

“Inside of the organization, we always talked about how we really had /two/
organizations,” said Brown. “One was Creative Commons, the /movement/; and
one was Creative Commons, the /machine/.”[^242] The machine was about meeting
utilitarian needs through licenses and software; the movement was about
motivating people and transforming culture. Just as the GPL had given rise to
the free software community and a hacker political philosophy (which in turn
inspired the Creative Commons's organizers), so the CC licenses were
spontaneously igniting different pockets of the culture: Web designers,
bloggers, musicians, book authors, videographers, filmmakers, and amateurs of
all stripes. The viral spiral was proceeding apace.

The tension between the machine and the movement has been an animating force in
the evolution of the Creative Commons. “You want to have something that's
actually useful to people,” said Brown, “but you also have to get people
excited about it, and build up your constituency.”[^243] Some CC initiatives
have had strong symbolic resonances but little practical value, while other
initiatives were quite useful but not very sexy. For example, embedding CC
metadata into software applications and Web services is complicated and
technical — but highly effective in extending the practices of free culture.
On the other hand, the Creative Commons's release of specialty licenses for
music sampling, developing nations, and a CC version of the General Public
License for software (as discussed below) were discretionary moves of some
utility that were probably more important as gestures of solidarity to allies.

This has been a recurrent motif for the organization — pragmatic,
improvisational outreach to distinct constituencies as part of a larger attempt
to build a movement. There has always been a corresponding pull, however,
“not to put ‘the machine' at risk by incorporating the new licenses into
every last one of our software tools,” said Brown. The integrity of “the
machine” ultimately needs to be respected.

Even as the machine was getting built, Lessig was taking steps to stoke up a
movement. In 2004, Lessig published his third book in five years, /Free
Culture/. The book described, as the subtitle put it, “how big media uses
technology and the law to lock down culture and control creativity.” Lessig's
earlier books, /Code/ and /The Future of Ideas/, had critiqued the alarming
trends in copyright law, explained the importance of the commons, and set forth
a philosophical rationale for what became the CC licenses. Now /Free Culture/
provided a wide-ranging survey of how incumbent industries with old business
models — for recorded music, film, broadcasting, cable television — were
(and are) curbing traditional creative freedoms and technological innovations.
Drawing explicitly on the ideas of freedom developed by Richard Stallman in the
1980s, and upon legal history, politics, and colorful stories, Lessig argued
that industry protectionism poses a profound harm to creators, business, and
democratic culture — and that action needed to be taken.

Although /Free Culture/ repeats many of the fundamental arguments made in his
earlier books, Lessig's arguments this time did not sound like a law
professor's or academic's, but more like an activist trying to rally a social
movement. “This movement must begin in the streets,” he writes. “It must
recruit a significant number of parents, teachers, librarians, creators,
authors, musicians, filmmakers, scientists — all to tell their story in their
own words, and to tell their neighbors why this battle is so important. . . .
We will not reclaim a free culture by individual action alone. It will take
important reforms of laws. We have a long way to go before the politicians will
listen to these ideas and implement these reforms. But that also means that we
have time to build awareness around the changes that we need.”[^244] The
preeminent challenge for this would-be movement, Lessig wrote, is “rebuilding
freedoms previously presumed” and “rebuilding free culture.”

Lessig had reason to think that his analysis and exhortations would find
receptive ears. He was now a leading voice on copyright and Internet issues,
and well known through his earlier books, public speaking, and /Eldred/
advocacy. The launch of the Creative Commons was thrusting him into the
spotlight again. Adoption of the CC licenses was steadily growing in 2003 and
2004 based on the most comprehensive sources at the time, search engines. Yahoo
was reporting in September 2004 that there were 4.7 million links to CC
licenses on the Web. This number shot up to 14 million only six months later,
and by August 2005 it had grown to 53 million.[^245] These numbers offer only a
crude estimate of actual license usage, but they nonetheless indicated a
consistent trend. Usage was also being propelled by new types of Web 2.0 sites
featuring usergenerated content. For example, Flickr, the photo-sharing site,
had 4.1 million photos tagged with CC licenses at the end of 2004, a number
that has soared to an estimated 75 million by 2008.

The decisive choice, four years earlier, to build a suite of licenses that
could propagate themselves via open networks was bearing fruit.

BUILDING THE CC MACHINE
.......................

It was a pleasant surprise for the organization to learn that a great deal of
individual usage of the CC licenses was fairly spontaneous. Persuading large
companies and respected institutions to use the CC licenses was a more
difficult proposition. Lessig therefore spent a fair amount of time trying to
get prominent institutions to adopt the licenses and give them some validation.
Among the early converts were MIT, Rice University, Stanford Law School, and
Sun Microsystems, supplemented by some relatively new organizations such as
Brewster Kahle's Internet Archive and the Public Library of Science, a
publisher of open-access journals.

Personal diplomacy can accomplish only so much, however, and in any case the
Internet itself needed to be leveraged to disseminate the licenses and educate
the public. One challenge, for example, was to introduce the CC licenses —
which are not, after all, a self-evident need for most people — in a clear,
compelling way. Most authors and artists have little idea what licenses they
may want to choose, and their implications for how they might be able to sell
or share works in the future. People needed a quick and easy way to make
intelligent choices. It fell to Lisa Rein, the first technical director at CC,
in late 2001, to develop a license-generating interface for the Web site. The
quandary she faced was how to maximize user choice in selecting licenses while
minimizing complexity.

The Web interface for the licenses has steadily improved over the years, but in
a sense, those improvements have been offset by a growing complexity and number
of CC licenses. Some critics have complained that the whole CC scheme can be a
bit daunting. Yes, the licenses can ensure certain freedoms without your having
to hire an attorney, which is clearly an improvement over relying on the fair
use doctrine. But that does not mean that anyone can immediately understand the
implications of using a NonCommercial or ShareAlike license for a given work.
Any lurker on a CC listserv soon encounters head-scratching questions like
“Can I use a BY-NC photo from Flickr on my blog if the blog is hosted by a
company whose terms of service require me to grant them a worldwide,
nonexclusive license to use any work hosted by their service, including for
commercial use?”

By far the more important vehicle for promoting usage of the CC licenses has
been software code. Lessig and the CC team realized that if the licenses could
become an embedded element of leading search engines, Web publishing tools, and
Web 2.0 platforms, it could powerfully promote license use. Integrating the
code into existing Web sites and software can pose some serious technical
challenges, however. Figuring out how to integrate the CC licenses with popular
software applications, Web services, and digital file formats has fallen
chiefly to Nathan Yergler, the chief technology officer of Creative Commons.
Over the years, he and other CC developers have come up with a variety of
applications to help make software infrastructures more friendly. One program
that was developed, ccHost, is a content management system that has licensing
and remix tracking built into its core. JsWidget is a simple javascript widget
that developers can easily integrate into their sites to enable users to choose
a license without leaving the site. Creative Commons has made it a standard
practice to coordinate its work with technology volunteers, startup companies,
and nonprofits with a stake in digitally enabling open licensing. It does this
work through a CC development wiki, the cc-devel mailing list, Internet Relay
Chat, World Wide Web Consortium working groups, and participation in Google's
annual “Summer of Code” program for student programmers.

Lessig and top CC staff have worked hard at convincing executives at major
software enterprises to incorporate the CC licenses into a software application
or Web site. One early triumph came when the makers of Movable Type, a blogging
platform, agreed to make it easy for users to tack a CC license onto their
blogs. Two months later, the O'Reilly empire of software blogs adopted the CC
licenses. Then programmer Dave Winer embedded the licenses in his new Web log
software in 2003. Blogs may not be core infrastructure for the Internet, but
they are plentiful and popular, and have given Creative Commons enormous
visibility and a high adoption curve.

It had always been Lessig's ambition that the major search engines would be
reengineered to help people find CC-tagged content. To help prove that it could
be done, Creative Commons built its own jerry-rigged search engine that
retrieved content tagged with CC metadata. Lessig and Brown, meanwhile, made
numerous diplomatic overtures to Google and Yahoo executives and software
engineers. After two years of off-and-on conversations, both search engine
companies agreed in 2005 to incorporate changes into their advanced searches so
that users could locate CC-licensed content. (The Google advanced search does
not use the Creative Commons name, but simply asks users if they want content
that is “free to use or share,” among other options.) The search engine
exposure was a serious breakthrough for Creative Commons's visibility and
legitimacy.

After a few years, the CC licenses were integrated into a number of other
software platforms. It became possible to search for CClicensed images
(Flickr), video programs (blip.tv), music (Owl), and old Web content (Internet
Archive, SpinXpress). With these search tools, Internet users had a practical
way to locate blues tunes that could be remixed, photos of the Eiffel Tower
that could be modified and sold, and articles about flower arrangements that
could be legally republished. Advertisers, publishers, and other companies
could search for images, songs, and text that could be licensed for commercial
use.

Lessig and Brown worked hard to get other major Web and software companies to
make it easy for users to tag content with CC licenses. The ultimate goal was
to make it easy for users to automate their preferences. Joi Ito, a Japanese
venture capitalist and democratic reformer who became the chair of the Creative
Commons's board of directors in 2006, put it this way: “Every input device
that you have, whether it's a camera phone, a digital camera or PowerPoint
software, should allow you to automatically set it to the CC license that you
want. And the minute you take that picture, you've already expressed how you
would want that picture to be used.”

Creative Commons also urged open-source software communities to incorporate
CC-made software into their applications so that users can more easily tag
content with the licenses or find licensed works. Firefox, for example, has
integrated a Creative Commons search function into the drop-down menu of its
browser search interface. It also has a plug-in module called MozCC that scans
for any CC metadata as you browse Web pages, and then reports on the browser
status bar how content is licensed. CC licenses have been integrated into other
software as well, such as Songbird, a free software media player, and Inkscape,
a free vector-graphics program similar to Adobe Illustrator.

Application by application, Web site by Web site, the Creative Commons board
and staff have tried to insinuate the licenses into as many software
applications and Web services as they could, in a kind of behind-the-scenes
enactment of Lessig's book /Code/. If code is law, then let's write it
ourselves! The diffusion of the licenses has tended to occur through personal
connections of Lessig, CC board members, and friendly tech entrepreneurs and
programmers. Joi Ito used his contacts at Sony to persuade it to develop a
video remix Web site in Japan that uses CC licenses as the default choice. For
Sony, the licenses help the company avoid any whiff of legal impropriety
because users must stipulate whether their video remixes may be shared or not.

In 2006, Microsoft went so far as to come out with a plug-in module for its
Word program, enabling writers to tag their text documents with CC licenses. At
the time, many CC fans grumbled at the hypocrisy of Microsoft, the
five-hundred-pound gorilla of proprietary software, embracing the Creative
Commons, even in such a modest way. But for Lessig and CC board members, any
business that chooses to advance the reach of free culture — in this case, by
accessing the 400 million users of Microsoft Office — is welcomed. While this
ecumenical tolerance has made the Creative Commons a big-tent movement with an
eclectic assortment of players, it has also provoked bitter complaints in free
software and Wikipedia circles that the Creative Commons promotes a fuzzy,
incoherent vision of “freedom” in the digital world (an issue to which I
return in chapter 9).

One vexing problem that CC developers confronted was how to digitally tag
stand-alone files as CC-licensed work if they are not on the Web. How could one
tag an MP3 file, for example, to show that the music is under a CC license? One
problem with just inserting a CC tag onto the MP3 file is that anyone could
fraudulently mark the file as CC-licensed. To prevent scams, Neeru Paharia,
then CC assistant director, and other developers came up with a solution that
requires any stand-alone digital files that are embedded with CC licenses to
include a URL (Uniform Resource Locator) that links to a Web page verifying the
assertions made on the file.

The practice of embedding CC license information on digital files has been
called /digital rights expression/ — a kind of benign analogue to digital
rights management. The purpose is to embed information about the copyright
status of a work /in/ the digital file. Unlike DRM, the goal is not to try to
build an infrastructure for enforcing those rights or controlling how people
may use a work. “Instead of using technology to ensure that the consumer
can't do anything with it,” said Mike Linksvayer, CC vice president and
former chief technology officer, “we're trying to use technology to ensure
that people can find a CC-licensed work. If they're looking, for instance, for
music that can remixed, then this information will help a search engine locate
that information.”[^246]

Perhaps the neatest self-promotional trick that the Creative Commons has
devised is to rely upon companies whose very business plans revolve around CC
licenses. We will examine “open business” enterprises in chapter 10, but
for now it is worth noting that a number of innovative companies use the
licenses as a core element of their business strategy. These enterprises
include Flickr (photo sharing), Magnatune (an online record label), Jamendo (a
Luxembourg-based music site), and Revver (a video-sharing site that shares
advertising revenues with creators).

Infrastructure grows old and occasionally needs to be updated and improved. The
CC licenses have been no exception. As users have incorporated them into one
medium after another, the unwitting omissions and infelicitous legal language
of some parts of the licenses needed revisiting. After many months of
discussions with many parts of the CC world, the Creative Commons issued a new
set of 2.0 licenses in May 2004.[^247] They did not differ substantially from
the original ones, and in fact the changes would probably bore most nonlawyers.
For example, version 2.0 included a provision that allows a licensor to require
licensees to provide a link back to the licensor's work. The 2.0 licenses also
clarify many complicated license options affecting music rights, and make clear
that licensors make no warranties of title, merchantability, or fitness for
use. Perhaps the biggest change in version 2.0 was the elimination of the
choice of Attribution licenses. Since nearly 98 percent of all licensors chose
Attribution, the Creative Commons decided to drop licenses without the
Attribution requirement, thereby reducing the number of CC licenses from eleven
to six.

Another set of major revisions to the licenses was taken up for discussion in
2006, and agreed upon in February 2007.[^248] Once again, the layperson would
care little for the debates leading to the changes, but considerable, sometimes
heated discussion went into the revisions. In general, the 3.0 tweaks sought to
make the licenses clearer, more useful, and more enforceable. The issue of
“moral rights” under copyright law — an issue in many European countries
— is explicitly addressed, as are the complications of the CC licenses and
collecting societies. New legal language was introduced to ensure that people
who remix works under other licenses, such as the GNU Free Documentation
License (FDL), would be able to also use CC-licensed materials in the same work
— an important provision for preventing free culture from devolving into
“autistic islands” of legally incomptabile material. Besides helping align
the CC world with Wikipedia (which uses the GNU FDL license), the 3.0 revisions
also made harmonizing legal changes to take account of MIT and the Debian
software development community.

By getting the CC licenses integrated into so many types of software and Web
services, and even leveraging market players to embrace the sharing ethic,
Creative Commons has managed to kill at least three birds with one stone. It
has enlarged the universe of shareable Internet content. It has educated people
to consider how copyright law affects them personally. And it has given
visibility to its larger vision of free culture.

In one sense, the CC “machine” composed of the licenses, the CC-developed
software, and the CC-friendly protocol was the engine for change. In another
sense, the influence that Creative Commons has acquired derives from the social
communities that gradually began to use its infrastructure. The social practice
infused power into the “machine” even as the machine expanded the social
practice. A virtuous cycle took hold, as the CC community used its self-devised
legal and technological infrastructure to advance their shared cultural agenda.

Driving this cycle was an ever-growing staff and new managers working out of
offices in downtown San Francisco. Although Lessig has been the chief executive
officer and chairman of the board of Creative Commons for most of its
existence, most day-to-day operating responsibilities fell to executive
director Glenn Otis Brown until his departure in 2005, and then to general
counsel Mia Garlick, who left in 2007. (Both took jobs at Google.) Key
executives at Creative Commons in 2008 included Mike Linksvayer, vice
president; Eric Steuer, creative director; Diane Peters, general counsel;
Nathan Yergler, chief technology officer; and Jennifer Yip, operations manager.
The annual budget, which was $750,000 in 2003, had grown to $3.6 million in
2008 (a sum that included the Science Commons project). Much of this funding
came from foundations such as the John D. and Catherine T. MacArthur
Foundation, the William and Flora Hewlett Foundation, the Rockefeller
Foundation, and Omidyar Network.

Once the CC machine had secured its footing, Lessig and the CC staff paid close
attention to the movement — the social communities that find utility and
meaning through Creative Commons— and to developing new software and projects
that these early adopters would welcome. In 2006, the organization hit upon the
idea of hosting a series of “salons” in major cities. The gatherings have
become a big success, and are now replicated in cities throughout the world.
Artists talk about how they use CC licenses; entrepreneurs explain how their
business models work; remix artists perform their work. The events, free and
open to the public, combine testimonials about free culture, personal
networking, entrepreneurial idea-mongering, live performances, and partying.
The CC crowd seems to enjoy partying; they do it well. Every December, there
are gala anniversary parties in groovy San Francisco hot spots. There have been
virtual parties in the immersive online world, Second Life. Because CC users
tend to include some of the most adventurous artistic talent and eclectic
innovators around — people who know where the truly cool night spots are —
CC parties tend to be lively, good times. The parties in Rio and Dubrovnik, at
the iCommons Summits, were memorable international happenings, for example —
occasions, as one self-styled Lothario boasted to me, “where a guy could
dance with a woman from every continent of the world in a single evening.”

Add to the mix tech-oriented college students, another key sector of free
culture activism, and there is even more youthful energy. Hundreds of college
students participate in a nationwide student organization, FreeCulture.org,
later renamed Students for Free Culture. The group got its start in 2004 when
some students at Swarthmore College began investigating the reliability of
Diebold electronic voting machines; the company invoked copyright law in an
attempt to keep the problems secret, leading to a public confrontation that
Diebold lost. Nelson Pavlosky and Luke Smith, who were also inspired by
Lessig's advocacy, co-founded the group, which has since spawned over thirty
quasi-autonomous chapters on campuses across the United States and a few
foreign nations. The organization tries to be a grassroots force on Internet,
digital technology, and copyright issues. It has mounted protests against CDs
with digital rights management, for example, and hosted film remixing contests
and exhibits of CC-licensed art at NYU and Harvard. Students for Free Culture
also organized a “no-profit record company/recording collective,” the
Antenna Alliance, which gave bands free recording space and distributed their
CC-licensed music to college radio stations.

We have looked at the machine and many parts of the movement, but not at one of
the most significant forces fueling Creative Commons — the dozens of national
projects to adapt the licenses to legal systems around the world. The long-term
reverberations of this movement — which includes activists in Brazil,
Croatia, South Africa, Egypt, Peru, Scotland, and dozens of other countries —
are only beginning to be felt.

8 FREE CULTURE GOES GLOBAL
..........................

/The commoners mount a transnational mobilization to build their own digital
commons./

It is a measure of Lessig's ambition for Creative Commons that only five months
after the release of the licenses, in April 2003, he instigated a move to take
the idea global. Glenn Brown remembers objecting, “I don't know how we're
going to get this done! Larry was like, ‘We have no other choice. We /have/
to do this. This needs to be an international organization.'”[^249]

Professor James Boyle, a board member, was aghast. “That's the stupidest
thing I've ever heard,” he said upon hearing the idea. “I was practically
foaming at the mouth,” he recalled, noting that it was “just insane” to
try to adapt the licenses to the mind-boggling complexities of copyright laws
in scores of nations.[^250] But Lessig, determined to make the Creative Commons
an international project, proceeded to hire Christiane Asschenfeldt (now
Christiane Henckel von Donnersmarck), a Berlin-based copyright lawyer whom he
had met the previous summer at an iLaw (Internet Law) conference in Cambridge,
Massachusetts. He charged her with helping project leaders in different
countries adapt the licenses (or, in computerese, “port” them) to their
respective national legal codes.

Asschenfeldt set about inventing a system for gathering teams of volunteers,
usually associated with a law school or technology institute, to become CC
affiliates. Once an affiliate institution and project lead are chosen, the
project lead produces a first draft of the licenses, which then undergoes
public discussion, rewriting, and a final review by the new international arm
of Creative Commons, CC International.[^251] (Confusingly, this project was
originally called “iCommons,” a name that in 2006 was reassigned to a new
CC spinoff group that convenes the international free culture movement.)

In a pre-Internet context, the whole idea of a creating a new international
license architecture and network of legal experts might seem ridiculously
unrealistic. But by 2003 there were enough examples of “distributed
intelligence” popping up that it no longer seemed so crazy to think that a
passionate corps of dispersed volunteers could collaborate as catalysts for
change. In any case, following the /Eldred/ defeat, Lessig and Brown came to
believe, as discussed earlier, that the Creative Commons needed to be both a
machine and a movement.

Going international with the licenses offered an appealing way to grow both
simultaneously without forcing unpleasant trade-offs between the two, at least
initially. Drafting the licenses for a country, for example, helps convene top
lawyers committed to the idea of legal sharing and collaboration while also
mobilizing diverse constituencies who are the potential leaders of a movement.

According to Jonathan Zittrain, an early collaborator on the project and a
board member, Creative Commons at the international level is more of a
“persuasive, communicative enterprise than a legal licensing one.”[^252] It
is a vehicle for starting a process for engaging public-spirited lawyers, law
scholars, and all manner of creators. The licenses do have specific legal
meanings in their respective legal jurisdictions, of course, or are believed to
have legal application. (Only three courts, in the Netherlands and Spain, have
ever ruled on the legal status of the CC licenses. In two instances the courts
enforced the licenses; in the other case, in which the defendant lost, the
validity of the licenses was not at issue.)[^253] Apart from their legal
meaning, the licenses' most important function may be as a social signaling
device. They let people announce, “I participate in and celebrate the sharing
economy.” The internationalization of the CC licenses has also been a way of
“localizing” the free culture movement.

The first nation to port the CC licenses was Japan. This was partly an
outgrowth of a five-month sabbatical that Lessig had spent in Tokyo, from late
2002 through early 2003. There were already stirrings of dissatisfaction with
copyright law in Japan. Koichiro Hayashi, a professor who had once worked for
the telecom giant NTT, had once proposed a so-called d-mark system to allow
copyright owners to forfeit the statutory term of copyright protection and
voluntarily declare a shorter term for their works. In the spring of 2003, a
team of Japanese lawyers associated with a technology research institute, the
Global Communications Center (GLOCOM), working with CC International in Berlin,
set about porting the licenses to Japanese law.

Yuko Noguchi, a former Lessig student and lawyer who later became the legal
project lead, explained that the CC licenses are a culturally attractive way
for Japanese to address the structural problems of copyright law. Japan is a
country that prizes harmony and dislikes confrontation. The licenses offer a
way to promote legal sharing without forcing bitter public policy conflicts
with major content industries.[^254] (Partly for such reasons, CC Japan shifted
its affiliation to the University of Tokyo in 2006.) In a culture that enjoys
the sharing of comics, animation, haiku, and other works, the CC Japan
licenses, launched in January 2004, have been used by a diverse range of
artists and companies.

During his sojourn in Japan, Lessig had a fateful meeting with Joichi Ito, who
in many ways embodies the tech sophistication, democratic zeal, and
cosmopolitan style of the international Creative Commons movement. Widely known
as Joi (pronounced “Joey”), Ito, forty-two, was born in Japan and educated
in the United States. Disaffected with formal education in the U.S., where he
studied computer science and physics, he dropped out and began his highly
unusual career in Japan as an activist, entrepreneur, and venture capitalist.
He has worked as a nightclub disc jockey, and brought industrial music and the
rave scene to Japan, but he has also become a talented venture capitalist and
early stage investor in such companies as Six Apart, Technorati, Flickr,
SocialText, Dopplr, and Rupture. Lessig and Ito became close friends; Ito later
joined the Creative Commons board. He was appointed chairman of the board in
2007 and then, in 2008, he became chief executive officer when Lessig left to
start a congressional reform project. Duke law professor James Boyle, a board
member, replaced Ito as chairman.

Once it went public, the very idea of Creative Commons attracted many other
people like Ito to its ranks: educated, tech-savvy, culturally fluent,
activist-minded. In fact, following the American launch of Creative Commons,
volunteers from many countries began to approach the organization, asking if
they could port the licenses to their own legal systems. Finland became the
second nation to adopt the licenses, in May 2004, followed a month later by
Germany. In Europe, the early adopters included Denmark, Hungary, Scotland,
Slovenia, Sweden, and Malta. In South America, CC licenses were introduced in
Argentina, Chile, and Peru. In Asia, Malaysia and China ported the licenses, as
did Australia. Israel was the first Middle Eastern country to port the
licenses.

As each jurisdiction introduces its licenses, it typically hosts a gala public
event to celebrate and publicize free culture. News media and government
officials are invited. There are panel discussions about copyright law and
digital culture; performances by musicians who use the licenses; and
endorsements by prominent universities, cultural institutions, and authors.
Lessig has made it a practice to fly in and deliver an inspirational speech.
Few international launches of CC licenses have been more spectacular or
consequential than the one staged by Brazil in March 2004.

BRAZIL, THE FIRST FREE CULTURE NATION
.....................................

Luiz Inácio Lula da Silva had just been elected president of Brazil, and he
was eager to stake out a new set of development policies to allow his nation to
plot its own economic and cultural future. His government, reflecting his
electoral mandate, resented the coercive effects of international copyright law
and patent law. To tackle some of these issues on the copyright front,
President Lula appointed Gilberto Gil, the renowned singer-songwriter, as his
minister of culture.

Gil became a revered cultural figure when he helped launch a new musical style,
/tropicalismo/, in the late 1960s, giving Brazil a fresh, international cachet.
The music blended national styles of music with pop culture and was inflected
with political and moral themes. As one commentator put it, /tropicalismo/ was
“a very '60s attempt to capture the chaotic, swirling feel of Brazil's
perennially uneven modernization, its jumble of wealth and poverty, of rural
and urban, of local and global. . . . They cut and pasted styles with an
abandon that, amid today's sample-happy music scene, sounds
up-to-theminute.”[^255] The military dictatorship then running the government
considered /tropicalismo/ sufficiently threatening that it imprisoned Gil for
several months before forcing him into exile, in London. Gil continued writing
and recording music, however, and eventually returned to Brazil.[^256]

This history matters, because when Gil was appointed culture minister, he
brought with him a rare political sophistication and public veneration. His
moral stature and joyous humanity allowed him to transcend politics as
conventionally practiced. “Gil wears shoulder-length dreadlocks and is apt to
show up at his ministerial offices dressed in the simple white linens that
identify him as a follower of the Afro-Brazilian religion /candomblé/,”
wrote American journalist Julian Dibbell in 2004. “Slouching in and out of
the elegant Barcelona chairs that furnish his office, taking the occasional sip
from a cup of pinkish herbal tea, he looks — and talks — less like an elder
statesman than the posthippie, multiculturalist, Taoist intellectual he
is.”[^257]

As luck had it, Dibbell — author of the article on cyber-rape that had
enticed Lessig to investigate digital culture in the first place (see chapter
3) — was living in Rio at the time. He was friendly with Hermano Vianna, a
prominent intellectual who knew Gil and was deeply into the music scene and
digital technology. Between Dibbell and Vianna, a flurry of introductions was
made, and within months Larry Lessig, John Perry Barlow, and Harvard law
professor William Fisher were sitting with Gil, Vianna, and Dibbell in Gil's
Rio de Janeiro penthouse across from the beach.[^258] Lessig's mission was to
pitch the Creative Commons licenses to Gil, and in particular, get Gil's
thoughts about a new CC Sampling license that would let musicians authorize
sampling of their songs.

“Gil knew that sampling was a central driving power for contemporary
creativity well before digital instruments came along,” recalled Vianna.
"/Tropicalismo/ was all about sampling different ideas and different cultures.
/Tropicalismo/ was about juxtapositions, not fusions, and in this sense was
heir to a long tradition of Brazilian modern thought and art that began with
the cultural anthropology of the early modernists, in the 1920s and 1930s, and
can be traced back to all debates about Brazilian identity in the 20th
century."[^259]

Lessig did not need to argue his case. Gil immediately understood what Creative
Commons was trying to accomplish culturally and politically. He was
enthusiastic about CC licenses, the proposed Sampling license, and the prospect
of using his ministry to advance a vision of free culture.

By further coincidence, Ronaldo Lemos da Silva, then a Brazilian law student
who has been described as a “Lessig of the Southern Hemisphere,” had just
completed his studies at Harvard Law School. He was well acquainted with
Creative Commons and was considering his future when friends at the Fundação
Getulio Vargas (FGV), a Rio de Janeiro university, urged him to join them in
founding a new law school. The school would host a new Center for Technology
and Society to study law and technology from the perspective of developing
nations like Brazil. Lemos accepted, and the center soon became the host for CC
Brazil and myriad free culture projects.

This alignment of intellectual firepower, artistic authority, and political
clout was extraordinary — and a major coup for Creative Commons. The culture
minister of the world's fifth-largest country and tenth-largest economy —
whose own forty-year career was based on a remix sensibility — became a
spirited champion of the CC licenses and free culture. Unlike most culture
ministers, who treat culture chiefly as an aesthetic amenity, Gil took the
economic and technological bases of creativity seriously. He wanted to show how
creativity can be a tool for political and cultural emancipation, and how
government can foster that goal. It turned out that Brazil, with its mix of
African, Portuguese, and indigenous cultures and its colorful mix of vernacular
traditions, was a perfect laboratory for such experimentation.

One of the first collaborations between Creative Commons and the Brazilian
government involved the release of a special CC-GPL license in December
2003.[^260] This license adapted the General Public License for software by
translating it into Portuguese and putting it into the CC's customary “three
layers” — a plain-language version, a lawyers' version compatible with the
national copyright law, and a machine-readable metadata expression of the
license. The CC-GPL license, released in conjunction with the Free Software
Foundation, was an important international event because it gave the imprimatur
of a major world government to free software and the social ethic of sharing
and reuse. Brazil has since become a champion of GNU/Linux and free software in
government agencies and the judiciary. It regards free software and open
standards as part of a larger fight for a “development agenda” at the World
Intellectual Property Organization and the World Trade Organization. In a
related vein, Brazil has famously challenged patent and trade policies that
made HIV/AIDS drugs prohibitively expensive for thousands of sick Brazilians.

When the full set of CC Brazil licenses was finally launched— at the Fifth
International Free Software Forum, in Port Alegre on June 4, 2004 — it was a
major national event. Brazilian celebrities, government officials, and an
enthusiastic crowd of nearly two thousand people showed up. Gil, flying in from
a cabinet meeting in Brasília, arrived late. When he walked into the
auditorium, the panel discussion under way immediately stopped, and there was a
spontaneous standing ovation.[^261] “It was like a boxer entering the arena
for a heavyweight match,” recalled Glenn Otis Brown. “He had security
guards on both sides of him as he walked up the middle aisle. There were
flashbulbs, and admirers trailing him, and this wave of people in the audience
cresting as he walked by.”[^262]

Gil originally planned to release three of his songs under the new CC Sampling
license — dubbed the “Recombo” license — but his record label, Warner
Bros., balked. He eventually released one song, “Oslodum,” that he had
recorded for an indie label. “One way to think about it,” said Brown, “is
that now, anybody in the world can jam with Gilberto Gil.”[^263]

As culture minister, Gil released all materials from his agency under a CC
license, and persuaded the Ministry of Education as well as Radiobrás, the
government media agency, to do the same. He also initiated the Cultural Points
(Pontos de Cultura) program, which has given small grants to scores of
community centers in poor neighborhoods so that residents can learn how to
produce their own music and video works. Since industry concentration and
payola make it virtually impossible for newcomers to get radio play and
commercially distribute their CDs, according to many observers, the project has
been valuable in allowing a fresh wave of grassroots music to “go public”
and reach new audiences.

For developing countries, the real challenge is finding ways to tap the latent
creativity of the “informal” economy operating on the periphery of formal
market systems. Brazil is rich with such creative communities, as exemplified
by the flourishing /tecnobrega/ music scene in the northeast and north regions
of Brazil. Ronaldo Lemos says that /tecnobrega/ — “a romantic sound with a
techno-beat and electronica sound”[^264] —arose on the fringes of the
mainstream music marketplace through “sound system parties” attended by
thousands of people every weekend. Local artists produce and sell about four
hundred new CDs every year, but both the production and distribution take place
outside the traditional music industry. The CDs can't be found in retail stores
but are sold entirely by street vendors for only $1.50. The CDs serve as
advertising for the weekend parties. The music is “born free” in the sense
that the /tecnobrega/ scene doesn't consider copyrights as part of its business
model and does not enforce copyrights on their CDs; it invites and authorizes
people to share and reuse the content.[^265] (The /tecnobrega/ business model
is discussed at greater length in chapter 10.)

Lemos believes the CC licenses are an important tool for helping grassroots
creativity in Brazil to “go legitimate.” He explains, “Creative Commons
provides a simple, non-bureaucratic structure for intellectual property that
might help to integrate the massive marginal culture that is arising in the
peripheries, with the ‘official,' ‘formal' structures of the Brazilian
economy.”[^266] Freed of the blockbuster imperatives of the current music
market, the CC licenses allow creativity in the informal “social commons”
to flow — yet not be appropriated by commercial vendors. People can
experiment, generate new works, and learn what resonates with music fans. All
of this is a predicate for building new types of open markets, says Lemos.
/Tecnobrega/ is just one of many open-business models that use the free
circulation of music to make money.

Since its launch in June 2004, Lemos and the CC Brazil office have instigated a
number of projects to demonstrate how sharing and collaboration can spur
economic and cultural development. They have promoted free software and open
business models for music and film and started collaborations with allies in
other developing nations. Nigerian filmmakers inspired the People's Cinema in
Brazil, a project to help people use audio-video technology to produce their
own films and develop audiences for them. The /culture-livre/ (free culture)
project, a joint effort of Creative Commons in Brazil and South Africa, is
using the ccMixter software to encourage young musicians to mix traditional
African instruments with contemporary sensibilities, and launch their
careers.[^267]

In Brazil, there are open-publishing projects for scientific journals;[^268] a
Web site that brings together a repository of short films;[^269] and
Overmundo,a popular site for cultural commentary by Internet users.[^270]
TramaVirtual, an open-platform record label that lets musicians upload their
music and fans download it for free, now features more than thirty-five
thousand artists.[^271] (By contrast, the largest commercial label in Brazil,
Sony-BMG, released only twelve CDs of Brazilian music in 2006, according to
Lemos.)

“Cultural production is becoming increasingly disconnected from traditional
media forms,” said Lemos, because mass media institutions “are failing to
provide the adequate incentives for culture to be produced and circulated. . .
. Cultural production is migrating to civil society and/or the peripheries,
which more or less already operate in a ‘social commons' environment, and do
not depend on intellectual property within their business models.”[^272]

As more people have adopted legal modes of copying and sharing under CC
licenses, it is changing the social and political climate for copyright reform.
Now that CC Brazil can cite all sorts of successful free culture ventures, it
can more persuasively advocate for a Brazilian version of the fair use doctrine
and press for greater photocopying privileges in educational settings (which
are legally quite restrictive).

Although the CC licenses are now familiar to many Brazilians, they have
encountered some resistance, mostly from lawyers. “Among all other audiences
— musicians, artists, writers — they were extremely well received,” said
Lemos. When he presented the CC licenses to an audience of three hundred
lawyers, however, he recalls that a famous law professor publicly scoffed:
“You're saying this because you're young, foolish, and communist.” Three
years later, Lemos discovered that the professor was using his intellectual
property textbook in her class.

As a unique global ambassador of creative sharing, Gilberto Gil did a lot to
take the CC licenses to other nations and international forums such as the
World Intellectual Property Organization. The day before his 2004 benefit
concert for the Creative Commons in New York City with David Byrne, Gil
delivered a powerful speech explaining the political implications of free
culture:

  A global movement has risen up in affirmation of digital culture. This
  movement bears the banners of free software and digital inclusion, as well as
  the banner of the endless expansion of the circulation of information and
  creation, and it is the perfect model for a Latin-American developmental
  cultural policy (other developments are possible) of the most
  anti-xenophobic, anti-authoritarian, anti-bureaucratizing, anti-centralizing,
  and for the very reason, profoundly democratic and transformative sort.[^273]

The Brazilian government was making digital culture “one of its strategic
public policies,” Gil said, because “the most important political battle
that is being fought today in the technological, economic, social and cultural
fields has to do with free software and with the method digital freedom has put
in place for the production of shared knowledge. This battle may even signify a
change in subjectivity, with critical consequences for the very concept of
civilization we shall be using in the near future.”[^274]

To advance this new paradigm, Gil, who left his post as culture minister in
2008, called for the rise of “new creative /mestizo/ [hybrid] industries”
that break with the entrenched habits of the past. Such businesses “have to
be flexible and dynamic; they have to be negotiated and re-negotiated, so that
they may contemplate the richness, the complexity, the dynamism and the speed
of reality itself and of society itself, without becoming impositions.”[^275]

NATIONAL VARIATIONS OF A GLOBAL IDEA
....................................

When it comes to free culture, Brazil is clearly a special case. But citizens
in more than seventy nations have stepped forward to build a CC presence in
their societies. Each has shown its own distinctive interests.

Tomislav Medak, a philosopher by training and a copyfighter by circumstance,
runs the Multimedia Institute in Zagreb, Croatia, a cultural center that
consists mostly of a performance space, a lounge, and a café. The organization
survives on donations from the likes of George Soros's Open Society Institute,
but it thrives because it is the gathering place for an avant-garde corps of
electronic musicmakers, publishers, performers, and hackers. Mainstream Croats
would probably describe the community as a bunch of
“cyberSerbian-gay-Communists,” said Medak, which he concedes is not
inaccurate.[^276] But the institute is not just a coalition of minority
interests; it is also broad-spectrum champion of cultural freedom. It sees free
software, civil liberties, and artists' rights as core elements of a democratic
society that it would like to build.

The Multimedia Institute was understandably excited when it learned about
Creative Commons and Lessig's vision of free culture. With help from some
lawyer friends, the institute in January 2004 ported the CC licenses to
Croatian law, primarily as a way to empower artists and counteract the
dominance of corporate media and expansive copyright laws. “We are a country
where the IP framework is very young, and most of the policies are
protection-driven. Most policies are dictated by official institutions that
just translate international documents into local legislation,” Medak
said.[^277] This commercial/copyright regime tends to stifle the interests of
emerging artists, amateurs, consumers and local culture.

“In the post-socialist period,” said Medak, “our society has been hugely
depleted of the public domain, or commons. The privatization process and the
colonizing of cultural spaces have been blatant over the last couple of years,
especially in Zagreb. So the Creative Commons has fit into a larger effort to
try to recapture some of those public needs that were available, at least
ideologically, in socialist societies. Now they are for real.”[^278] Medak
has since gone on to become a leader of iCommons and the host of the
international iCommons Summit in 2007, which brought several hundred commoners
from fifty nations to Dubrovnik.

In Scotland, government and other public-sector institutions have been huge
fans of the CC licenses. In fact, museums, archives, and educational
repositories have been the primary advocates of the CC Scotland licenses, says
Andrés Guadamuz, a law professor at the Research Centre for Studies in
Intellectual Property and Technology Law at the University of Edinburgh.
“People who want to try to share information in the public sector are turning
to Creative Commons because they realize that here is a license that is already
made.”[^279]

The BBC was a pioneer in making its archived television and radio programs
available to the public for free. In 2003, inspired by the CC licenses, the BBC
drafted its own “Creative Archive” license as a way to open up its vast
collection of taxpayer-financed television and radio programs.[^280] The
license was later adopted by Channel 4, the Open University, the British Film
Institute, and the Museum, Libraries and Archives Council. Although the
Creative Archive license has similar goals as the CC licenses, it contains
several significant differences: it restricts use of video programs to United
Kingdom citizens only, and it prohibits use of materials for political or
charitable campaigns and for any derogatory purposes.

The CC licenses have proven useful, also, to the British Museum and National
Archives. In 2004, these and other British educational institutions were
pondering how they should make their publicly funded digital resources
available for reuse. A special government panel, the Common Information
Environment, recommended usage of the CC licenses because they were already
international in scope. The panel liked that the licenses allow Web links in
licensed materials, which could help users avoid the complications of formal
registration. The panel also cited the virtues of “human readable deeds”
and machine-readable metadata.[^281]

As it happened, a team of Scottish legal scholars led by a private attorney,
Jonathan Mitchell, successfully ported the licenses and released them a few
months later, in December 2005. The Scottish effort had been initiated a year
earlier when Mitchell and his colleagues objected that the U.K. CC licenses
then being drafted were too rooted in English law and not sufficiently attuned
to Scottish law. Since the introduction of the CC Scotland licenses,
publicsector institutions have enthusiastically embraced them. Museums use the
licenses on MP3 files that contain audio tours, for example, as well as on Web
pages, exhibition materials, and photographs of artworks. Interestingly, in
England and Wales, individual artists and creative communities seem to be more
active than public-sector institutions in using the licenses.

The use of CC licenses for government information and publicly funded materials
is inspiring similar efforts in other countries. Governments are coming to
realize that they are one of the primary stewards of intellectual property, and
that the wide dissemination of their work — statistics, research, reports,
legislation, judicial decisions — can stimulate economic innovation,
scientific progress, education, and cultural development. Unfortunately, as
Anne Fitzgerald, Brian Fitzgerald, and Jessica Coates of Australia have pointed
out, “putting all such material into the public domain runs the risk that
material which is essentially a public and national asset will be appropriated
by the private sector, without any benefit to either the government or the
taxpayers.”[^282] For example, the private sector may incorporate the
public-domain material into a value-added proprietary model and find other
means to take the information private. The classic instance of this is West
Publishing's dominance in the republishing of U.S. federal court decisions.
Open-content licenses offer a solution by ensuring that taxpayerfinanced works
will be available to and benefit the general public.

In the United States, the National Institutes of Health has pursued a version
of this policy by requiring that federally funded research be placed in an
open-access archive or journal within twelve months of its commercial
publication. The European Commission announced in 2007 that it plans to build a
major open-access digital repository for publicly funded research.[^283] In
Mexico, the Sistema Internet de la Presidencia, or Presidency Internet System
(SIP), decided in 2006 to adopt CC licenses for all content generated by the
Mexican presidency on the Internet — chiefly the president's various Web
sites, Internet radio station, and documents.[^284] In Italy, CC Italy is
exploring legislation to open up national and local government archives. It
also wants new contract terms for those who develop publicly funded information
so that it will automatically be available in the future.[^285]

LABORATORIES OF FREE CULTURE
............................

In 2005, about two years after the launch of CC International, twenty-one
jurisdictions around the world had adopted the licenses. (A legal jurisdiction
is not necessarily the same as a nation because places like Scotland, Puerto
Rico, and Catalonia — which have their own CC licenses — are not separate
nations.) Under a new director of CC International, copyright attorney
Catharina Maracke, who took over the license-porting project in 2006, the pace
of license adoption has continued. By August 2008, fortyseven jurisdictions had
ported the CC licenses, and a few dozen more had their projects under way. The
CC affiliates have now reached a sufficient critical mass that they represent a
new sort of international constituency for the sharing economy. The CC network
of legal scholars, public institutions, artistic sectors, and Internet users is
not just a motivated global community of talent, but a new sort of
transnational cultural movement: a digital republic of commoners.

To be sure, some nations have more institutional backing than others, and some
have more enthusiastic and active projects than others. CC Poland reported in
2006 that its biggest challenge was “a complete lack of financial and
organizational support, in particular from our partner organization.”[^286]
(This was remedied in 2008 when CC Poland entered into a partnership with an
interdisciplinary center at the University of Warsaw and with a law firm.) CC
affiliates in smaller developing countries with fewer resources — especially
in Africa — often have to beg and scrape to pull together resources to
supplement the work of volunteers.

Not surprisingly, the American CC licenses — a version of which was spun off
as a generic license, as opposed to jurisdictionspecific licenses — are the
most used. In a pioneering study of license usage in January 2007, Giorgos
Cheliotis of Singapore Management University and his co-authors conservatively
estimated that there were 60 million distinct items of CC content on the
Internet — a sum that rose to 90 million by the end of 2007. Over 80 percent
of these items use a license that is not jurisdiction-specific; the remaining
20 percent are spread among the thirty-three nations included in the
study.[^287] The highest volume of license usage per capita can be found in
European nations — particularly Spain, Germany, Belgium, France, Italy, and
Croatia — which were among the earliest adopters of the licenses. In absolute
terms, the heaviest usage can be seen in Spain, Germany, France, South Korea,
Italy, and Japan.[^288] Overall, however, CC usage outside of the United States
is still fairly new, and usage and growth rates vary immensely from country to
country.

As a fledgling network, the international CC community is a rudimentary
platform for change. Its members are still groping toward a shared
understanding of their work and devising new systems of communication and
collaboration. But a great deal of cross-border collaboration is occurring. A
variety of free culture advocates have constituted themselves as the Asia
Commons and met in Bangkok to collaborate on issues of free software, citizen
access to government information, and industry antipiracy propaganda. CC Italy
has invited leaders of neighboring countries— France, Switzerland, Austria,
Croatia, and Slovenia — to share their experiences and work together. A CC
Latin America project started /Scripta/, a new Spanish-language journal based
in Ecuador, to discuss free software and free culture issues affecting the
continent.

CC leaders in Finland, France, and Australia have published books about their
licensing projects.[^289] CC Brazil and CC South Africa have collaborated on a
project about copyright and developing nations. CC Canada is working with
partners to develop an online, globally searchable database of Canadian works
in the Canadian public domain. CC Salons have been held in Amsterdam, Toronto,
Berlin, Beijing, London, Warsaw, Seoul, Taipei, and Johannesburg.

In the Netherlands, CC project lead Paul Keller engineered a breakthrough that
may overcome the persistent objections of European collecting societies to
CC-licensed content. Collecting societies in Europe generally insist that any
musician that they represent transfer all of their copyrights to the
collective. This means that professional musicians cannot distribute their
works under a CC license. Artists who are already using CC licenses cannot join
the collecting societies in order to receive royalties for commercial uses of
their works. In this manner, collecting societies in many European nations have
effectively prevented many musicians from using the CC licenses.

In 2007, however, CC Netherlands negotiated a one-year pilot program with two
Dutch collecting societies, Buma and Stemra, to let artists use CC
NonCommercial licenses for parts of their repertoire.[^290] As a result,
artists will have greater choice in the release of their works and the ability
to easily manage their rights via a Web site. Other European CC affiliates hope
that this Dutch experiment will break the long stalemate on this issue and
persuade their collecting societies to be more flexible.

THE DEVELOPING NATIONS LICENSE
..............................

One of the boldest experiments in the CC world was the creation of the
Developing Nations license, launched in September 2004. A year earlier, Lessig
had approached James Love, the director of Knowledge Ecology International
(previously the Consumer Project on Technology), to ask him to craft a CC
license that might help developing countries. Love proposed that the CC offer a
“rider” at the end of its existing licenses so that people using the
licenses could exempt developing nations from, say, the NonCommercial or
NoDerivatives license restrictions. So, for example, if a textbook author
wanted to let developing nations copy her book for either commercial or
noncommercial purposes, she could add a rider authorizing this practice.

Love was trying to do for books and journal articles what is already possible
for drugs — the legalization of a commercial market for generic equivalents.
Love had seen how generic drugs could reach people only because for-profit
companies were able to produce and sell the drugs; nonprofit or philanthropic
distribution is just not powerful enough. But the market for generic drugs is
possible only because of laws that authorize companies to make legal knockoffs
of proprietary drugs once the patent terms expire. Love hoped to do the same
via a Developing Nations license for copyrighted works: “It would create an
opportunity for the publishing equivalent of generic drug manufacturers who
make ‘generic' books. In developing countries, you have whole libraries full
of photocopied books. You would not have libraries there if people didn't
engage in these practices.”[^291]

In the end, Creative Commons offered the Developing Nations license as a
separate license, not a rider. It had simple terms: “You must attribute the
work in the manner specified by the author or licensor (but not in any way that
suggests that they endorse you or your use of the work)” — and the license
was valid only in non–high income nations, as determined by United Nations'
statistics. Although the release of the license got considerable press
coverage, actual usage of the license was extremely small. The most prominent
use was totally unexpected — for architectural designs. Architecture for
Humanity, a California nonprofit, used the license for its designs of low-cost
housing and health centers. The organization wanted to give away its
architectural plans to poor countries while not letting its competitors in the
U.S. use them for free.[^292]

The expected uses of the Developing Nations license never materialized. In
2006, Love said, “The license is there, but people who might be willing to
use it are not really aware of it.” He worried that the license “hasn't
really been explained in a way that would be obvious to them,” and ventured
that there may be “a need for a re-marketing campaign.” By this time,
however, the license had attracted the ire of Richard Stallman for its
limitations on “freedom.”[^293] It prohibited copying of a work in certain
circumstances (in high-income countries) even for noncommercial purposes, and
so authorized only a partial grant of freedom, not a universal one. “Well,
the whole point was /not/ to be universal,” said Love. “The license is for
people that are unwilling to share with high-income countries, but are willing
to share with developing countries. So it actually expands the commons, but
only in developing countries.”[^294]

The controversy that grew up around the Developing Nations license illuminates
the different approaches to movement building that Lessig and Stallman
represent. Lessig's advocacy for free culture has been an exploratory journey
in pragmatic idealism; Stallman's advocacy for free software has been more of a
crusade of true believers in a core philosophy. For Stallman, the principles of
“freedom” are unitary and clear, and so the path forward is fairly
self-evident and unassailable. For Lessig, the principles of freedom are more
situational and evolving and subject to the consensus of key creative
communities. The flexibility has enabled a broad-spectrum movement to emerge,
but it does not have the ideological coherence of, say, the free software
movement.

Several factors converged to make it attractive for Creative Commons to revoke
the Developing Nations license. Some people in the open-access publishing
movement disliked the license because it did not comply with its stated
standards of openness. In addition, Richard Stallman's increasingly strident
objections to Creative Commons licenses were starting to alarm some segments of
the “free world.” What if Internet content became Balkanized through a
series of incompatible licenses, and the movement were riven with sectarian
strife? Stallman objected not only to the Developing Nations license, but to
attempts by Creative Commons to get Wikipedia to make its content, licensed
under the GNU Free Documentation license, compatible with the CC licenses. By
2007 this dispute had been simmering for four years (see pages 212–217).

Finally, many CC staff members regarded the Developing Nations and Sampling
licenses as misbegotten experiments. Fewer than 0.01 percent of uses of CC
licenses at the time involved the Developing Nations license, and the Sampling
license was used by a relatively small community of remix artists and
musicians. If eliminating two little-used niche licenses could neutralize
objections from the open access and free software movements and achieve a
greater philosophical and political solidarity in the “free world,” many CC
partisans regarded a rescission of the licenses as a modest sacrifice, if not a
net gain.

In June 2007, Creative Commons announced that it was officially retiring the
two licenses.[^295] In a formal statement, Lessig explained, “These licenses
do not meet the minimum standards of the Open Access movement. Because this
movement is so important to the spread of science and knowledge, we no longer
believe it correct to promote a standalone version of this license.”[^296]
The Creative Commons also revoked the Sampling license because it “only
permits the remix of the licensed work, not the freedom to share it.” (Two
other sampling licenses that permit noncommercial sharing— SamplingPlus and
NonCommercial SamplingPlus — were retained.)

Anyone could still use the Sampling or Developing Nations license if they
wished; they still exist, after all. It's just that the Creative Commons no
longer supports them. While the actual impact of the license revocations was
minor, it did have major symbolic and political significance in the commons
world. It signaled that the Creative Commons was capitulating to objections by
free software advocates and the concerns of open access publishing activists.

THE ICOMMONS NETWORK
....................

As an international network of CC affiliates grew, it naturally spawned new
pockets of activism. Lessig explained: “Once a country gets launched, it
becomes a cell of activism. Sometimes it is very traditional — Creative
Commons Korea is made up of a bunch of federal judges — and sometimes it is
very radical — Creative Commons Croatia is made of up a bunch of real
activists who want to change copyright. Creative Commons Poland, too, is a
bunch of really smart law graduates. But then there is the artist community, on
the other side, many of whom want to blow up copyright; they just think it is
ridiculous.

“So the opportunity and problem we faced at that point,” said Lessig,
“was, ‘Well, what are we going to do with these activists?' Because
Creative Commons wanted to facilitate activism, of course, but it wasn't as if
we could bring activism into our core because it would make it more
suspect.”[^297]

The first steps toward organizing this protocommunity of activists came in
March 2005, when eighty people from the various international licensing
projects convened in Boston to talk about their shared challenges.[^298] It
quickly became clear that everyone wanted a forum in which to learn from one
another, coordinate their work, and see themselves as something larger . . .
perhaps a new sort of movement.

Here again was the tension between “the movement” and “the machine.” As
neutral stewards of the licenses, the CC affiliates could not become
full-throated advocates of a new international free culture movement. Their
mission was preserving the integrity and utility of the licenses for all users,
not advocacy. To avoid this problem, the Creative Commons, with an infusion of
seed money and CC leaders, in 2006 started a new nonprofit organization,
iCommons.

iCommons, a registered charity in the United Kingdom, is led by Heather Ford, a
South African who met Lessig at Stanford and went back to her country to
evangelize the Creative Commons licenses. Working out of Johannesburg, Ford is
the activist counterpart to her Berlin licensing colleagues. She is a
gregarious, spirited organizer who keeps tabs on activist gambits in dozens of
nations and pulls together annual iCommons “summits.”

The iCommons conferences are something of a staging area for a new type of
global citizenship in the digital “free world.” The first conference, in
Rio de Janeiro in June 2006, attracted more than three hundred commoners from
fifty nations.[^299] The second one, in Dubrovnik, Croatia, drew a somewhat
larger and still more diverse crowd, and a third was held in Sapporo, Japan, in
2008. The free and open-source software community and the Creative Commons
network are two of the largest, most influential blocs participating in
iCommons, although Wikipedians represent a growing sector. But there are many
other factions. There are musicians from the indie music, netlabels, and the
remix scene. Filmmakers trying to reform fair use legal norms and video artists
who are into mashups. Bloggers and citizen-journalists and social-networking
fans. Gamers and participants in immersive environments like Second Life and
World of Warcraft. Open business entrepreneurs who regard free software and CC
licenses as key elements of their competitive, profit-making strategies.

From Japan, there were anime artists who are into remixes. From South Africa,
print-on-demand research publishers. A bare-chested Brazilian guitarist traded
thoughts about copyright law with a Zagreb performer. An Amsterdam hacker with
a punk t-shirt shared a smoke with an American academic. From India, there was
Lawrence Liang, founder of the Alternative Law Forum, a leading intellectual
about copyright law and economic and social inequality. From Syria, there was
Anas Tawileh, who is working to produce the Arab Commons, a directory of Arabic
works released under any of the CC licenses. He hopes it will counteract “the
weak representation of the Arabic language on the Internet, the shallow nature
of Arabic content currently available and the consumption rather than the
production of knowledge.” From the United States, there was Michael Smolens,
an entrepreneur who started dotSUB, a captioning system to make any film
available in any language.

The convergence of so many players in the nascent sharing economy, assembled in
the flesh, was a bracing glimpse into a new kind of cosmopolitan, democratic
sensibility. The program organizers stated their aspirations this way: “How
do we help one another to build a commons that nurtures local communities while
respecting the needs of others? How can we move towards the growth of a
‘Global Commons Community'?”[^300]

Although most international commoners seem to be culturally progressive and
politically engaged, they cannot be situated along a left-right ideological
spectrum. This is because commoners tend to be more pragmatic and
improvisational than ideological. They are focused on building specific
projects to facilitate sharing and creativity, based on open-source principles.
Their enthusiasm is for cool software, effective legal interventions, and
activist innovations, not sectarian debate.

It is not as if politics has been banished. For example, some critics have
questioned the “elite” origins and governance structure of iCommons, which
was hatched by CC board members and leaders. David Berry, a free culture
advocate who teaches at the University of Sussex, complained on a listserv that
iCommons was “creating a corporate machine rather than a democratic
one.”[^301] He cited ambiguity in the powers of the organization, the murky
process by which the iCommons code of conduct was adopted, and the board's
selection of community council members. Still other critics have grumbled at
the Creative Commons's collaboration with Microsoft in developing a licensing
feature within the Word application.

When pressed at the 2006 iCommons Summit to develop more formal organizational
structure, Lessig begged off for the time being, saying that “trust and faith
in each other” was a better approach than rigid rules and system. “We need
a recognition that we have a common purpose. Don't tell me that I need to tell
you what that is, because we'll never agree, but we do have a common
purpose.”[^302] This provoked Tom Chance, a free software and free culture
advocate, to complain that “Lessig's call to base the organization on
‘trust and faith in each other' is too idealistic and undemocratic.”

The encounter nicely captures the quandaries of leadership and governance in
the networked environment. How can the effectiveness and clarity of leadership
be combined with networked participation and the legitimacy that it provides?
How should an organization draw philosophical boundaries to define itself while
remaining open to new ideas? How should participation in online collectives be
structured to generate collective wisdom and legitimacy and avoid collective
stupidity and bureaucratic paralysis? In this case, iCommons diversified its
governance in late 2007. It invited the Free Software Foundation Europe,
Computer Professionals for Social Responsibility, and Instituto Overmundo, a
Brazilian nonprofit dedicated to cultural diversity, to join Creative Commons
as full-fledged partners in managing the organization. Despite its broadened
leadership, iCommons remains more of a convener of annual forums and discussion
host than the democratically sanctioned voice of an international movement.

This is not surprising. The international commons community is still a
fledgling enterprise trying to forge an identity and agenda. The resources for
many CC affiliates are quite modest and the bonds of cooperation remain
rudimentary. That said, the international explosion of free culture projects,
above and beyond the CC licenses themselves, is nothing short of remarkable. It
represents a “vast, transnational mobilization in favor of digital
freedom,” as Gilberto Gil put it. In the early stages of the viral spiral, no
one could have imagined that a corps of passionate, self-selected volunteers
cooperating through the Internet could accomplish so much. And it continues,
unabated.


----------------------------------------
9 THE MANY FACES OF THE COMMONS
-------------------------------

/As the “free world” grows and diversifies, so does debate over how to
build the commons./

As the Creative Commons insinuated itself into one creative sector after
another, and throughout dozens of nations, the variety of licenses
proliferated. By one count in 2006, there were once eighteen distinct CC
licenses, not counting version changes.[^*8] In the meantime, other parties
were offering their own licenses. While the Creative Commons licenses had
become the most-used licenses on the Internet, many people were choosing to use
Free Software Foundation licenses for text (the GNU Free Documentation License,
or FDL), the European Art Libre license, and special licenses that various
institutions have devised for the arts, music, and educational works.

In theory, a proliferation of licenses is not a bad thing. By the lights of
free-market economics and complexity theory, in fact, the best way to identify
the most useful licenses is to introduce a variety of them and then let them
compete for supremacy. Let natural selection in an ecosystem of licenses cull
the losers and elevate the most useful ones.

Unfortunately, this libertarian vision of diverse licenses competing for
supremacy in the cultural ecosystem can run up against a harsh reality of the
Internet. Too many disparate licenses may make it /harder/ for people to share
content in an easy, interoperable way. It is not the proliferation of licenses
per se that is problematic, it is the absence of a mechanism to enable
differently licensed works to “play together” so that they can commingle
and be used to produce new things. If bodies of works released under a CC
license cannot be combined with works licensed under other licenses, it defeats
one of the key value propositions of the Internet, easy interoperability and
facile sharing and reuse. Despite its best intentions, license proliferation
has the effect of “fencing off the commons,” because the different license
terms keep different bodies of work in separate ghettos.

Incompatibility is a problem both within the suite of CC licenses and between
CC licenses and other licenses. Within the CC suite of licenses, for example, a
work licensed under the AttributionNonCommercial-ShareAlike license (BY-NC-SA)
cannot legally be combined with a work licensed under the Attribution-No
Derivatives license (BY-ND) or an Attribution-NonCommercial (BY-NC). The former
license requires that any derivative works be licensed under the same license,
period.

Some observers are not disturbed by the internal incompatibilities of the CC
suite of licenses. They regard the different licenses as tools for various
communities to build their own “subeconomies” of content, based on their
own distinct needs and priorities. A scientist may not want his research
articles altered or combined with other material. A musician may want to
promote noncommercial usage on the Internet but retain commercial rights so
that he can benefit from any CD sales. Not all creative sectors want to
distribute their work in the same ways.

The incompatibility between CC-licensed work and other freecontent licenses is
arguably more problematic. At a conference in Spain in the summer of 2005,
Lessig recalls having a “Homer Simpson moment” — /D'oh!/ — when he
realized where license proliferation was heading. The incompatibility of
licenses, and therefore bodies of content, could lead to an irretrievably
fragmented universe of content. Lessig saw license proliferation as analogous
to the Balkanization of technical standards that once plagued mainframe
computing. IBM computers couldn't communicate with DEC, which couldn't
communicate with Data General.[^303] “The legal framework of the licensing
world is basically a pre-Internet framework,” said Lessig in 2007. “We
don't have interoperability at the layer of legal infrastructure.”[^304]

  In my view [said Lessig], there's a critical need for the free culture
  movement to achieve interoperability. And until it achieves interoperability,
  there's a huge problem — because we're creating these kinds of autistic
  islands of freedom. Basically, the stuff produced in the Wikimedia world is
  free, but can only be used in the Wikimedia world; the stuff created in the
  Creative Commons world is free, but can only be used in the Creative Commons
  world — and never the two will meet. That's very destructive, because what
  we want is a kind of invisible platform of freedom that everybody can then
  build on. It's been my objective from the very beginning to find the way to
  assure that we would get that platform.[^305]

A critic might call it “the revenge of choice” — the inevitable outcome
of a neoliberal philosophy that privileges individualism and choice, rather
than a collective concern for the commons. This is the view of Niva
Elkin-Koren, a law professor at the University of Haifa (which coincidentally
is the host of CC Israel). Elkin-Koren argues that the Creative Commons is
replicating and reinforcing property rights discourse and failing to advance
the cause of copyright reform. Because the Creative Commons is plagued by an
“ideological fuzziness” that does not adequately set forth a philosophical
vision of freedom or the commons, Elkin-Koren believes the CC project threatens
to “spread and strengthen the proprietary regime in information.”[^306]

This critique was at the heart of one of the most serious internecine squabbles
in the movement, the struggle to make Wikipedia content — licensed under the
Free Software Foundation's GNU Free Documentation License — compatible with
CC-licensed content. The failure to find a solution, after four years of
negotiation, threatened to keep two great bodies of Internet content from
legally commingling and cause further fragmentation of open content.

There are other controversies. Anticapitalist leftists periodically take the
Creative Commons to task for being too politically respectable. Friendly voices
from underdeveloped nations of the Southern Hemisphere have raised alarms that
the public domain is just another excuse for corporate exploitation of their
resources. Others from the South argue that the informal, social commons
inhabited by poor people — the “nonlegal commons” — deserve respect,
too. And then there are copyright traditionalists, who believe that a redoubled
effect to fortify the fair use doctrine should be a top priority.

For the most part, the general public is oblivious to these internecine
disputes. Who cares about the relative merits of using a GNU Free Documentation
License for Wikipedia entries instead of a Creative Commons license? The
layperson may not understand the long-term implications of vesting individual
authors with the choice of how to share a work (in the style of the Creative
Commons) as opposed to vesting communities of practice with those rights (in
the style of the Free Software Foundation's General Public License). Yet tech
sophisticates realize that, in the context of the Internet, uninformed choices
today can have serious practical consequences tomorrow. The terms of a license
or the design of a software application or digital appliance can prevent people
from sharing or reusing works. Bodies of content may become legally
incompatible. Consumer freedoms to innovate and distribute may be limited. And
then there are second-order questions that have great symbolic importance
within the movement, such as, Whose vision of “freedom” in digital spaces
shall we endorse? What is philosophically desirable and consistent?

For a movement that aspires to simplify copyright law, the free culture
movement has gotten embroiled in knotty debates that might give lawyers
headaches. It is not easy to tell if the disputants are persnickety zealots who
have spent too much time in front of their screens or latter-day Jeffersons,
Madisons, and Hamiltons— brilliant thinkers who are astute enough to
understand the longterm implications of some difficult issues and passionate
enough to take a stand. One person's arcana can be another person's
foundational principle, and one person's quest for intellectual clarity is
another person's distraction from the messy challenges of building a movement.

That is the basic problem of the crazy-quilt network that constitutes the free
world. There are, in fact, so many divergent, sometimes competing, sometimes
congruent agendas that it can be difficult to orchestrate them into a single,
harmonious song. For better or worse, the passions that animate culture
jammers, copyright reformers, hackers, law scholars, artists, scientists, and
countless others in seventy-plus countries are widely divergent. Although the
intramovement disagreements may sometimes seem gratuitous, sectarian, and
overblown, they are, in fact, understandable. The commoners tend to see their
projects as part of a larger, ennobling enterprise— the construction of a new
democratic polity and cultural ecology. It makes sense to fret about the
technical, legal, and philosophical details when so much is potentially at
stake.

INDIVIDUAL CHOICE VERSUS THE COMMONS
....................................

It turns out that overcoming license incompatibilities is not such an easy
task. Any attempt to bridge differences immediately runs into mind-bending
legal complexities. Crafting new licensing language can trigger philosophical
disagreements, some of which may be proxies for turf issues and personal
control. One of the major philosophical disagreements involves the one raised
by Elkin-Koren: the merits of individual choice versus the commons. Should
individuals be allowed to choose how their work may circulate in the wider
world, or is such legal partitioning of culture an affront to the value
proposition of the commons and its sharing ethic? Why should the choices of
individual creators be privileged over the creative needs of the general
culture?

The question is a divisive one. The answer that you give, Yochai Benkler of
Harvard Law School told me, “depends on whether you think that what you're
doing is building a political movement or whether you're building a commons
that has narrower appeal, but is potentially, more functionally
unitary.”[^307] A movement is about building a “big tent,” he said — a
vision that accommodates many different types of people with different
preferences. If you are building a movement, then you will use terminologies
that are attractive to a very broad range of liberal and illiberal conceptions
of choice, he said.

But a commons — of the sort that Richard Stallman's GPL enables for software
code — requires that its members honor a community's social and moral
priorities. A commons does not cater to individual preferences; its first
priority is to advance the shared goals and relationships of the community. A
commons is not oblivious to the self-interest of individuals. It just fulfills
that self-interest in a different way. A commons does not confer benefits
through individual negotiations or transactions, but instead through an
individual's good-faith participation in an ongoing, collective process. There
is no individual quid pro quo, in other words. A person's contributions accrue
to the collective — and benefits flow from belonging to that collective. This
is not an exotic or communistic model; it more or less resembles a scientist's
relationship with his research discipline. In the style of a gift economy, a
scientist's articles and lectures are gifts to the discipline; in return, he
enjoys privileged access to his colleagues and their research.

It is worth noting that a commons does not necessarily preclude making money
from the fruit of the commons; it's just that any commercial activity cannot
interfere with the integrity of social relationships within the commons. In the
case of GPL'd software, for example, Red Hat is able to sell its own versions
of GNU/Linux only because it does not “take private” any code or inhibit
sharing within the commons. The source code is always available to everyone. By
contrast, scientists who patent knowledge that they glean from their
participation in a scientific community may be seen as “stealing” community
knowledge for private gain. The quest for individual profit may also induce
ethical corner-cutting, which undermines the integrity of research in the
commons.

Ironically, the Creative Commons is not itself a commons, nor do its licenses
necessarily produce a commons in the strict sense of the term. The licenses are
/tools/ for creating commons. But the tools do not require the creation of a
commons (unlike the GPL). In this sense, a commons of CC-licensed content may
be a “lesser” type of commons because it may have restrictions on what
content may be shared, and how. The choices of individual authors, not the
preexisting claims of the community, are considered paramount.

Is one type of commons superior to the others? Does one offer a superior vision
of “freedom”? This philosophical issue has been a recurrent source of
tension between the Free Software Foundation, the steward of the GPL, and the
Creative Commons, whose licenses cater to individual choice.

Strictly speaking, a commons essentially offers a binary choice, explained
Benkler: “You're in the commons or you're out of the commons.” By
broadening that binary choice, the CC licenses make the commons a more
complicated and ambiguous enterprise. This is precisely what some critics like
Stallman have found objectionable about certain CC licenses. They don't
necessarily help forge a community of shared values and commitments. Or as two
British critics, David Berry and Giles Moss, have put it, the CC licenses
create “commons without commonality.”[^308]

Inviting authors to choose how their work may circulate can result in different
types of “commons economies” that may or may not be interoperable.
ShareAlike content is isolated from NoDerivatives content; NonCommercial
content cannot be used for commercial purposes without explicit permission; and
so on. CC-licensed works may themselves be incompatible with content licensed
under other licenses, such as the GNU Free Documentation License.

FREEDOM, THE COMMONS, AND MOVEMENT BUILDING
...........................................

The slightly confused layperson may ask, Why does all of this matter? The
answer may depend on your commitment to the commons as a different (better?)
way of creating value. Do you believe in individual freedom and choice, as
conceived by contemporary liberal societies? Or do you believe in the
/different type of freedom/ that comes through participation in a community of
shared values?

Does this state the choice too starkly, as an either/or proposition? Some
believe that it does. Perhaps a broader taxonomy of commons is possible.
Perhaps a commons can accommodate some measure of individual choice. Or is that
an oxymoron?

These are pivotal questions. The answers point toward different visions of free
culture and different strategic ideas about movement building. Is it enough to
put forward a demanding, utopian ideal of the commons, and hope that it will
attract a corps of true believers willing to toil away in the face of general
indifference or hostility? This is essentially what Stallman has done. Or is it
better to build a “coalition of the reasonable,” so that a more accessible,
practical vision can gain widespread social acceptance and political traction
in a relatively short period of time? This is the vision that drives Larry
Lessig and his allies.

Some critics accuse Creative Commons of betraying the full potential of the
commons because its licenses empower individual authors to decide how
“shareable” their works can be. The licenses do not place the needs of the
general culture or the commons first, as a matter of universal policy, and some
licenses restrict how a work may be used. The lamentable result, say critics
like Niva Elkin-Koren, is a segmented body of culture that encourages people to
think of cultural works as property. People internalize the norms, such as
“This is /my work/ and /I'll/ decide how it shall be used by others.”

This can be seen in the actual choices that CC licensors tend to use. Some 67
percent of CC-licensed works do not allow commercial usage.[^309] Arguments go
back and forth about whether the NC restriction enhances or shrinks freedom.
Many musicians and writers want to promote their works on the Internet while
retaining the possibility of commercial gain, however remote; this would seem a
strike for freedom. Yet critics note that the NC license is often used
indiscriminately, even when commercial sales are a remote possibility. This
precludes even modest commercial reuses of a work, such as reposting of content
on a blog with advertising.[^310]

The larger point of criticism is that the Creative Commons licenses do not
“draw a line in the sand” about what types of freedoms are inherent to the
commons. In the interest of building a broad movement, Creative Commons does
not insist upon a clear standard of freedom or prescribe how a commons should
be structured.

“While ideological diversity may be crucial for the successes of a social
movement,” observed Elkin-Koren, “it may impair attempts to make creative
works more accessible. The lack of a core perception of freedom in information,
may lead to ideological fuzziness. This could interfere with the goal of
offering a workable and sustainable alternative to copyright.”[^311] In an
essay that offers “a skeptical view of a worthy pursuit,” Elkin-Koren says
that the CC regime encourages narrow calculations of self-interest and the same
attitudes toward property and individual transactions as the market economy; it
does not promote a coherent vision of “freedom” that fortifies the commons
as such.

“The normative message that we communicate by using Creative Commons licenses
is the strategy of choice,” Elkin-Koren told me. “You're the owner, you're
the author, and therefore, you are entitled to govern your work. . . . No one
tells you that maybe it's wrong; maybe you should allow people to use your
work.” By using the CC licenses, she continued, we internalize these norms.
“We are teaching ourselves and others that our works are simply commodities,
and like every other commodity, everyone has to acquire a license in order to
use it.”[^312]

But champions of the Creative Commons licenses celebrate their approach as a
pragmatic and effective way to break free from the stifling “all rights
reserved” ethic of copyright law. Historically, of course, not much else has
been successful in challenging copyright norms — which is precisely why
Lessig and others find the CC strategy attractive. “If I believed that there
was a different discourse that had political purchase in someplace other than
tiny corners of law faculty commons rooms, I'd be willing to undertake it,”
said Lessig. He concedes that his viewpoint may be affected by his living in
the United States instead of Israel (where Elkin-Koren lives) but, in the end,
he considers the Creative Commons as “just my judgment about what's going to
be effective.”[^313]

THE SPLINTERING OF THE FREE WORLD?
..................................

At one point, the philosophical disagreements between the Creative Commons and
its critics did not matter so much. There was enough shared purpose and common
history that everyone could agree to disagree. And since the project was still
young, the stakes were not so high. But then it became clear that the CC
licenses would be quite popular indeed. When the Creative Commons issued its
Developing Nations and Sampling licenses in 2003, it brought Richard Stallman's
simmering dissatisfaction with the organization to a boil, threatening a
serious schism. Pointing to the “four freedoms” that define the free
software movement, Stallman criticized the new CC licenses as “not free”
because they do not allow universal copying of a work.

Stallman objected to the Sampling license because, while it allowed a remix of
a licensed work, it did not allow the freedom to share it. The Developing
Nations license was objectionable because its freedoms to copy are limited to
people in the developing world, and do not extend to everyone. Stallman also
disliked the fact that the CC tag that licensors affix to their works did not
specify /which/ license they were using. With no clear standard of
“freedom” and now a mix of licenses that included two “non-free”
licenses, Stallman regarded the CC tag as meaningless and the organization
itself problematic.

“I used to support Creative Commons,” said Stallman on his blog in July
2005, “but then it adopted some additional licenses which do not give
everyone that minimum freedom, and now I no longer endorse it as an activity. I
agree with Mako Hill that they are taking the wrong approach by not insisting
on any specific freedoms for the public.”[^314]

Mako Hill is a brilliant young hacker and Stallman acolyte who wrote a 2005
essay, “Towards a Standard of Freedom: Creative Commons and the Free Software
Movement,”[^315] a piece that shares Elkin-Koren's complaint about the CC's
“ideological fuzziness.” Then enrolled in a graduate program at the MIT
Media Lab, Hill has written a number of essays on the philosophy and social
values of free software. (When he was an undergraduate at Hampshire College, I
was an outside advisor for his senior thesis and remain friends with him.)

In his “Freedom's Standard” essay, Hill wrote: “[D]espite CC's stated
desire to learn from and build upon the example of the free software movement,
CC sets no defined limits and promises no freedoms, no rights, and no fixed
qualities. Free software's success is built on an ethical position. CC sets no
such standard.” While CC prides itself on its more open-minded “some rights
reserved” standard, Hill says that a real movement for freedom must make a
bolder commitment to the rights of the audience and other creators— namely,
that “essential rights are unreservable.”[^316]

By this, Hill means that certain essential freedoms should not be restricted by
copyright law or any license. The problem with the CC licenses, argued Hill, is
that they cannot commit to any "/defined/ spirit of sharing" (emphasis in
original). This is not the way to build a transformative, sustainable movement,
said Hill.[^317]

But what, then, about the choice of authors? Doesn't that freedom count for
anything? CC partisans have responded. Joi Ito, the chair of the Creative
Commons, wrote in 2007, “CC is about providing choice. FSF is mostly about
getting people to make /their/ choice. I realize it's not THAT clear-cut, but I
think the point of CC is to provide a platform for choice. . . . I realize that
we are headed in the same general free culture direction and many of us debate
what choices should be allowed, but I think we are more ‘tolerant' and
support more diverse views than the FSF.”[^318]

Lessig has argued many times that, just as the free software community decided
for itself how its content ought to be distributed, so other artistic sectors
— musicians, photographers, filmmakers, etc. — must make such decisions
themselves. If they can't have certain choices, then they will have little
interest in joining a movement for free culture, said Lessig at the 23rd Chaos
Communication Congress in Berlin. “We don't have the standing to tell
photographers or musicians what ‘freedom' is.” Why should the Free Software
Foundation, or any other group, be able to dictate to an artistic community how
their works should circulate?

Elkin-Koren is not so sure we can segment the world according to creative
sectors and let each determine how works shall circulate. “I don't think we
can separate the different sectors, as if we work in different sectors,” she
told me. “We all work in the production of information. My ideas on copyright
are really affected by the art that I use and the music that I listen to. . . .
Information is essential not only for creating something functional or for
selling a work of art, but for our citizenship and for our ability to
participate in society. So it's not as if we can say, ‘Well, this sector can
decide for themselves.'”[^319]

As Wikipedia began to take off in popularity, what might have been an
unpleasant philosophical rift grew into a more serious fissure with potentially
significant consequences. All Wikipedia content is licensed under the Free
Software Foundation's GNU Free Documentation License, or FDL,[^320] largely
because the CC licenses did not exist when Wikipedia was launched in 2001. The
FDL, originally intended for the documentation manuals that explicate software
applications, is essentially the same as the CC ShareAlike license (any
derivative works must also be released under the same license granting the
freedom to share). But using the FDL can get cumbersome, especially as more
video, audio, and photos are incorporated into a text; each artifact would
require that the license be posted on it. As more content is shared, the
potential for misuse of the content, and lawsuits over violations of licensing
agreements, would grow.[^321]

Unfortunately, as a legal matter, the FDL is incompatible with the CC licenses.
This means that all content on Wikipedia and its sister Wikimedia projects
(Wikispecies, Wikiquote, Wikinews, among other projects) cannot legally be
combined with works licensed under CC licenses. Angered by the two
“non-free” CC licenses, Stallman dug in his heels and defended Wikipedia's
use of the FDL. He also made it clear that he would remain a critic of Creative
Commons unless it revoked or changed its licenses to conform with the Free
Software Foundation's standards of “freedom.”

Thus began a four-year search for a resolution. Lessig recalled, “We started
to think about a way that Wikimedia could migrate to a license that we would
then deem as compatible to a Creative Commons license. That took two years of
negotiation, basically.” One proposed solution was for Wikimedia projects to
offer both licenses, the FDL and CC BY-SA, for the same work. However, it was
determined that derivative works licensed under one license would still be
incompatible with dual-licensed works, resulting in “project bleed” (new
works would migrate away the existing corpus of works). Another approach was
for a “one-way compatibility” of licenses, so that people creating works
under the FDL could use CC-licensed content.

But Lessig realized that these solutions dealt only with the issue at hand; the
real challenge was finding a more systemic solution. As various players engaged
with the FDL/CC controversy, it grew from a licensing squabble into an
intertribal confrontation. It became a symbol for everything that Stallman
found politically unacceptable about the Creative Commons's vision of freedom.

From 2005 to 2007, the issue roiled many factions within the free culture/free
software communities. The debate and invective flew back and forth in various
venues, and there were proposals, negotiations, and political maneuvers. MIT
computer scientist (and CC board member) Hal Abelson rejoined the FSF board.
Lessig and other CC staff entered into talks with the FSF general counsel, Eben
Moglen. Wikipedia co-founder Jimmy Wales joined the Creative Commons board. Yet
Stallman continued to resist, and the Wikimedia board would not approve any
proposed solutions.

The stalemate was broken in June 4, 2007, when Lessig made a surprise
announcement that the Creative Commons was “retiring” the Developing
Nations and Sampling licenses.[^322] One reason was a lack of interest in the
licenses: only 0.01 percent of CC licensors were using each license. But,
without alluding to the Free Software Foundation or Stallman, Lessig also noted
that the two licenses did not ensure a minimal freedom to share a work
noncommercially— a standard met by all other CC licenses. In addition, Lessig
pointed out to me, some publishers were beginning to see the Developing Nations
license as a subterfuge to avoid meeting open-access publishing standards.

For Creative Commons, the revocation of the two licenses was at least a shrewd
political move; it also affirmed a stricter standard of “freedom” in the
ability to use digital materials. In return for sacrificing two little-used
licenses, the organization gained Stallman's eventual support for a deal that
would let the FDL be treated as compatible with the CC ShareAlike license. This
was a major triumph because it could avoid the contorted, legalistic solutions
that had been previously proposed and rejected. It was also a breakthrough
because it averted a major rift between two growing bodies of open content and
avoided a slow drift into a wider Balkanization of content across the Internet.
“I kind of thought that no matter what we did, Richard would find a reason to
object,” recalled Lessig, “but he didn't. He stuck to his principles, so I
give credit to him.”[^323]

The debates about “freedom” produced several specific results. In November
2006, when Creative Commons released an updated legal version of its licenses,
version 3.0, it formally recognized other licenses as legally compatible with
the ShareAlike license if they have the same purpose, meaning, and effect, and
if the other license recognizes the CC license. The move should help avoid
future strife over interoperability.

A few months later, the Creative Commons also adopted a “Free Cultural
Works” definition and seal as a way to recognize works that are “free,”
as understood by the Free Software Foundation. The definition declares that
works with either the CC Attribution or Attribution-ShareAlike licenses should
be considered “free” because they give people the freedom to modify works
without any discrimination against specific uses or users. The definition and
seal /exclude/ the CC NonCommercial and NoDerivatives licenses, however,
because those licenses do not allow this sort of freedom. The purpose of the
seal is not to denigrate use of the NC and ND licenses, but to educate users
about the less restrictive licenses and to assert a philosophical solidarity
with the free software community.

As part of this larger effort, the Creative Commons also issued a draft
statement in April 2008 declaring the special importance of the ShareAlike
license in the free culture movement and the organization's intentions in its
stewardship of the license. The statement amounted to a diplomatic peace
treaty, to be finalized in the months ahead.

By May 2008 the details of the agreement to make Wikipedia's entries, licensed
under the FDL, legally compatible with materials licensed under the CC
ShareAlike license had not been consummated. But it was expected that the legal
technicalities would be ironed out, and two great bodies of open content would
no longer be legally off-limits to each other.

CRITICISM FROM THE LEFT AND FROM THE SOUTH
..........................................

As the Creative Commons has grown in popularity, a longer line has formed to
take issue with some of its fundamental strategies. One line of criticism comes
from anticapitalist ideologues, another from scholars of the underdeveloped
nations of the South.

British academics Berry and Moss apparently hanker for a more bracing
revolution in culture;they object to the commodification of culture in any form
and to the role that copyright law plays in this drama. To them, Lessig is
distressingly centrist. He is “always very keen to disassociate himself and
the Creative Commons from the (diabolical) insinuation that he is (God forbid!)
anti-market, anticapitalist, or communist,” Berry and Moss complain.[^324]
The gist of their objection: Why is Lessig collaborating with media
corporations and neoclassical economists when there is a larger, more profound
revolution that needs to be fought? A new social ethic and political struggle
are needed, they write, “not lawyers exercising their legal vernacular and
skills on complicated licenses, court cases and precedents.”

Dense diatribes against the antirevolutionary character of Creative Commons can
be heard in various hacker venues and cultural blogs and Web sites. The
argument tends to go along the lines sketched here by Anna Nimus of Berlin,
Germany:

  Creative Commons preserves Romanticism's ideas of originality, creativity and
  property rights, and similarly considers “free culture” to be a separate
  sphere existing in splendid isolation from the world of material production.
  Ever since the 18th century, the ideas of “creativity” and
  “originality” have been inextricably linked to an anti-commons of
  knowledge. Creative Commons is no exception. There's no doubt that Creative
  Commons can shed light on some of the issues in the continuing struggle
  against intellectual property. But it is insufficient at best, and, at its
  worst, it's just another attempt by the apologists of property to confuse the
  discourse, poison the well, and crowd out any revolutionary analysis.[^325]

To ensure that her revolutionary analysis gets out, Nimus released her piece
under a self-styled “Anticopyright” notation, with the added phrase, “All
rights dispersed.”

A more penetrating brand of criticism has come from the South, which fears that
the West's newfound enthusiasm for the commons may not necessarily benefit the
people of developing nations; indeed, it could simply legitimate new thefts of
their shared resources. In an important 2004 law review article, “The Romance
of the Public Domain,” law professors Anupam Chander and Madhavi Sunder argue
that “public domain advocates seem to accept that because a resource is open
to all by force of law, that resource will indeed be exploited by all. In
practice, however, differing circumstances — including knowledge, wealth,
power and ability — render some better able than others to exploit a commons.
We describe this popular scholarly conception of the commons as ‘romantic.' .
. . It is celebratory, even euphoric, about the emancipatory potential of the
commons. But it is also naïve, idealistic and removed from reality.”[^326]

If genes, seeds, indigenous medicines, agricultural innovations, artistic
designs, music, and the various ecological and cultural resources of the South
are not treated as private property, but instead as elements of the public
domain, then anyone can exploit them freely. This can lead to serious
injustices, as powerful corporations swoop in to exploit resources that are
available to all in the public domain.

Chander and Sunder write: “By presuming that leaving information and ideas in
the public domain enhances ‘semiotic democracy' — a world in which all
people, not just the powerful, have the ability to make cultural meanings —
law turns a blind eye to the fact that for centuries the public domain has been
a source for exploiting the labor and bodies of the disempowered — namely,
people of color, the poor, women and people from the global South.”[^327]
Chander and Sunder argue that the binary logic of copyright law — something
is either private property or in the public domain — “masks the ways in
which the commons often functions more in the interests of traditional property
owners than in the interests of commoners.”

This critique makes clear why the distinction between the public domain and the
commons matters. The public domain is an open-access regime available to all;
it has no property rights or governance rules. The commons, however, is a legal
regime for ensuring that the fruits of collective efforts remain under the
control of that collective. The GPL, the CC licenses, databases of traditional
knowledge, and sui generis national statutes for protecting biological
diversity all represent innovative legal strategies for protecting the commons.
The powerful can exploit and overwhelm the public domain, but they are not
likely to overwhelm a commons that has a legal regime to protect a collective's
shared resources.

A more radical and profound critique of the commons came in an open letter to
“inhabitants of the ‘legal' Commons” from “Denizens of Non Legal
Commons, and those who travel to and from them.” The three-page letter,
drafted by Shuddhabrata Sengupta, a filmmaker and writer with the Raqs Media
Collective in New Delhi, is a plea for recognizing the informal sharing economy
that flourishes beneath the oblivious gaze of mainstream society, and certainly
beyond the reach of property rights and law.

“Greetings!” the letter opens. “This missive arrives at your threshold
from the proverbial Asiatic street, located in the shadow of an improvised
bazaar, where all manner of oriental pirates and other dodgy characters gather
to trade in what many amongst you consider to be stolen goods.” To this
/other/ commons, stolen goods are really “borrowed,” because nothing is
really “owned” — and therefore nothing can be “stolen.” This is the
realm of “the great circulating public library of the Asiatic street.” The
letter continues:

  We appreciate and admire the determination with which you nurture your garden
  of licenses. The proliferation and variety of flowering contracts and clauses
  in your hothouses is astounding. But we find the paradox of a space that is
  called a commons and yet so fenced in, and in so many ways, somewhat
  intriguing. The number of times we had to ask for permission, and the number
  of security check posts we had to negotiate to enter even a corner of your
  commons was impressive. . . . Sometimes we found that when people spoke of
  “Common Property” it was hard to know where the commons ended and where
  property began . . .

  Strangely, the capacity to name something as “mine,” even if in order to
  “share” it, requires a degree of attainments that is not in itself evenly
  distributed. Not everyone comes into the world with the confidence that
  anything is “theirs” to share. This means that the “commons,” in your
  parlance, consists of an arrangement wherein only those who are in the magic
  circle of confident owners effectively get a share in that which is
  essentially, still a configuration of different bits of fenced in property.
  What they do is basically effect a series of swaps, based on a mutual
  understanding of their exclusive property rights. So I give you something of
  what I own, in exchange for which, I get something of what you own. The good
  or item in question never exits the circuit of property, even, paradoxically,
  when it is shared. Goods that are not owned, or those that have been taken
  outside the circuit of ownership, effectively cannot be shared, or even
  circulated.[^328]

The letter invites a deeper consideration of how humans form commons. However
ingenious and useful the jerry-rigged legal mechanisms of the GPL and Creative
Commons, the disembodied voice of the Non Legal Commons speaks, as if through
the sewer grate, to remind us that the commons is about much more than law and
civil society. It is part of the human condition. Yet the chaotic Asiatic
street is not likely to yield conventional economic development without the
rule of law, civil institutions, and some forms of legal property. The question
posed by the informal commons remains a necessary one to ponder: What balance
of commons and property rights, and in what forms, is best for a society?

FAIR USE AND THE CREATIVE COMMONS
.................................

Walk through the blossoming schools of commons thought and it quickly becomes
clear that the commons is no monolithic ideal but a many-splendored mosaic of
perspectives. To the befuddlement of conventional observers, the perspectives
are not necessarily adversarial or mutually exclusive. More often than not,
they are fractal— interesting variations of familiar commons themes. In our
fascination with newfangled commons, it is easy to overlook a more
traditionally minded defender of the commons: the champion of fair use. It is
all well and good to promote works that are “born free” under CC licenses,
say these friendly critics. But the hard fact of the matter is that for the
foreseeable future, creators will still need access to copyrighted content —
and this requires a strong fair use doctrine and aggressive public education.

It is a compelling argument, but in fact only an indirect criticism of Creative
Commons. For filmmakers who need to use film clips from existing films and
musicians who want to use a riff from another performer, the fair use doctrine
is indeed more important than any CC license. Peter Jaszi, the law professor at
American University's Washington School of Law, believes that even with growing
bodies of CC-licensed content, “teachers, filmmakers, editors, freelance
critics and others need to do things with proprietary content.” As a
practical matter, they need a strong, clear set of fair use guidelines.

Jaszi and his colleague Pat Aufderheide, a communications professor who runs
the Center for Social Media at American University, have dedicated themselves
to clarifying the scope and certainty of fair use. They have launched a major
fair use project to get specific creative communities to define their “best
practices in fair use.” If filmmakers, for example, can articulate their own
artistic needs and professional interests in copying and sharing, then the
courts are more likely to take those standards into consideration when they
rule what is protected under the fair use doctrine.[^329] A set of respectable
standards for a given field can help stabilize and expand the application of
fair use.

Inspired in part by a professional code developed by news broadcasters, some of
the nation's most respected filmmakers prepared the Documentary Filmmakers'
Statement of Best Practices in Fair Use, which was released in November 2005.
The guidelines have since been embraced by the film industry, television
programmers, and insurance companies (who insure against copyright violations)
as a default definition about what constitutes fair use in documentary
filmmaking.[^330] Aufderheide and Jaszi are currently exploring fair use
projects for other fields, such as teaching, as a way to make fair use a more
reliable legal tool for sharing and reuse of works.

Lessig has been highly supportive of the fair use project and, indeed, he
oversees his own fair use law clinic at Stanford Law School, which litigates
cases frequently. “It's not as if I don't think fair use is important,”
said Lessig, “but I do think that if the movement focuses on fair use, we
don't attract the people we need. . . . From my perspective, long-term success
in changing the fundamental perspectives around copyright depends on something
like Creative Commons as opposed to legal action, and even quasi-legal action,
like the Fair Use Project.”

For Lessig, fair use is deeply flawed as the basis for building a political
movement to reform copyright law. He argues that its advocates are dogged by
the (unfair) perception that they are “just a bunch of people who want to get
stuff for free, without paying for it. . . . It's too easy to dismiss that
movement.” Lessig recalled the time that the head of a major record label
snorted, “Fair use is the last refuge of the scoundrel.” Fair use defenders
obviously take issue with this characterization, but the accusation nonetheless
pushes fair use champions into a rhetorical corner from which it is difficult
to escape.

A more appealing alternative, Lessig argues, is to use the credibility of
copyright ownership to argue the point in a different way. He cited the
successful campaign by European software engineers in the 1980s to fight
attempts to expand patent protection for software. Their campaign did not
resemble “a bunch of peer-to-peer downloaders who are saying, ‘Yeah, I want
my music for free,'” said Lessig. “It was a bunch of people who are the
/beneficiaries/ of patent rights saying, ‘Look, we /don't want/ these
rights.' That creates a kind of credibility.” From a moral and political
standpoint, Lessig argued, a movement based on copyright owners declaring that
they want to forfeit certain rights in order to /share/ and promote creativity,
has greater credibility than a campaign seeking to “balance” the public's
rights against private copyright privileges.

“I imagine a world where there are one hundred million Creative
Commons–licensed artists out there, creating works according to Creative
Commons views,” he said. Then, when Hollywood pressures Congress for stronger
copyright protections, he said, “there would be all these people out there
who are creating according to a radically different model. [Hollywood's] claims
about extremism would just not be true for a large number of creators.”
Instead of a copyright debate that pits “creators” against “pirates,”
Lessig said, “I want to create this world where there is a third category of
people who are creators, but who create according to different values, values
that emphasize the importance of sharing and building upon the past.”[^331]

In the larger scheme of things, the tensions between the fair use and free
culture advocates are not mutually exclusive. In the end, the two approaches
complement each other with different contributions. Both seek to promote
sharing and reuse, but the former works within the traditional framework of
copyright law; the latter is trying to build a whole new body of culture and
discourse. There is a kind of gentleman's agreement between the fair use and
free culture communities to work on different sides of the street, while
traveling a parallel path down the same road.

For Lessig, there is little advantage in shirking the property rights discourse
of copyright law, as Elkin-Koren and the “Non Legal Commons” urge. Indeed,
he sees a distinct strategic advantage in /embracing/ that discourse — and
then trying to turn it to different ends. This, in a way, is what Stallman
succeeded in doing with the GPL, a license based on copyright law. Yet, while
Stallman attracted a somewhat homogeneous community of programmers to his
movement, Creative Commons has attracted a sprawling community of eclectic
interests, diverse priorities, and no agreed-upon philosophical core.

By choosing a middle path that embraces but seeks to transform property
discourse, Creative Commons may avoid the marginalization of ardent leftists
and the modest agenda of fair use activism. It remains an open question whether
the ideological fuzziness at the core of Creative Commons, or the limitations
of its licenses, is offset by its success in popularizing a new cultural
vision. Yochai Benkler, the great commons theorist, understands the legal
criticisms, and agrees with them to an extent. But ultimately, the significance
of Creative Commons, he believes, has been “in galvanizing a movement, in
symbolizing it and in providing a place to organize around. From my
perspective, if I care about Creative Commons, it is as a cultural icon for a
movement, more than as a set of licenses. Which is why I am less bothered than
some, about the people who are beginning to criticize Creative Commons and how
good the licenses really are, and how compatible they are.”[^332]

For Cory Doctorow, the copyfighter and sci-fi writer, the eclectic viewpoints
within the free culture movement is a decisive strength: “The difference
between a movement and an organization,” he wrote on the iCommons listserv,
“is that an organization is a group of people who want the same thing for the
same reason. A movement is a collection of groups of people who want the same
thing for different reasons. Movements are infinitely more powerful than
organizations.”

The reason the environmental movement is so powerful, Doctorow continued, is
the very fact that it encompasses “anticapitalists, green investors,
spiritualists, scientists, hunters and fishers, parents worried about
environmental toxins, labor reformers, proglobalists, anti-globalists, etc. . .
. Denuding the ideological landscape of the environmental movement in a purge
to eliminate all those save the ones who support environmentalism /qua/
environmentalism would be the worst setback environmentalism could suffer.
Likewise copyfighters: there are Marxists, anarchists, Ayn Rand objectivists,
economists, artists, free marketeers, libertarians, liberal democrats, etc.,
who see copyright liberalization as serving their agenda. If we insist that
copyright reform is about copyright reform and nothing else, there will be no
copyright reform movement.”[^333]

There is a price to be paid for all this diversity, however. Diversity means
constant debate. Debate can escalate into strife and sectarianism. And in the
free culture movement, where so many people are feverishly improvising and
inventing, nearly everything is open for debate. It turns out that this
business of inventing the commons is complicated stuff; there are many ways to
construct a commons. It is only natural for people to have their own ideas
about how to build the digital republic.

The fundamental question may be whether the existing framework of copyright law
and property discourse can be adequately reformed — or whether its very
categories of thought are the problem. The late poet and activist Audre Lorde,
in the context of feminist struggle, declared that the prevailing discourse
must be overthrown, not reformed, because, in her words, “the master's tools
will never dismantle the master's house.” Within the free software and free
culture movements, however, there are those who believe that copyright law can
be sufficiently adapted to build a sharing economy, a more competitive
marketplace, and a more humane democratic culture. Others are convinced that
the legal discourse of property rights, however modified, will simply entrench
the very principles that they wish to transcend. As the movement grows and
diversifies, debates over what constitutes the most strategic, morally
honorable path forward are likely to intensify.


----------------------------------------
PART III
========


----------------------------------------
A VIRAL SPIRAL OF NEW COMMONS
=============================


----------------------------------------
[INTRO]
-------

By 2008 the viral spiral had come a long way. Richard Stallman's fringe
movement to build a commons for code became an enormous success, partly
inspiring Lawrence Lessig and his compatriots to develop the Creative Commons
licenses and a larger vision of free culture. Empowered by these tools,
ordinary people began to develop some exciting new models for creativity and
sharing. New types of commons arose. Soon there was a popular discourse about
the sharing economy, a politics of open networks, and a new international
social movement. The movement was so successful at diversifying itself that it
was able to engage in serious internecine squabbles.

As the commons movement matured, and people came to understand the
sensibilities of open networks, the viral spiral seemed to acquire new speed
and powers. Over the past few years, it has advanced into all sorts of new
arenas. Part III examines three of the most exciting ones — business,
science, and education. Each has taken the tools and insights developed by the
commons movement — free software, CC licenses, collaborative models — and
adapted them to its own special needs.

These spin-off movements of entrepreneurs, scientists, and educators recognize
their debt to the free software and CC licenses, but none feels confined by
that history or beholden to its leaders. Each is too intent on adapting the
tools to its own circumstances. Just as CC licenses have been used in some ways
by musicians, and in other ways by filmmakers, and in still other ways by
bloggers, so the commoners in the worlds of business, science, and education
are forging their own paths. Development requires differentiation. It is
fascinating to watch how the principles of the commons are being crafted to
meet the distinctive needs of the marketplace, the academy, the research lab,
and the classroom.

What may be most notable about these developments is the blurring of these very
categories. On open platforms, social communities are becoming sites for market
activity. Scientists are increasingly collaborating with people outside their
disciplines, including amateurs. Formal education is becoming more focused on
learning, and learning is moving out of the classroom and into more informal
and practice-driven venues.

If there is a common denominator in each of the domains examined in Part III,
it is the use of distributed networks, social community, and digital
technologies to enhance the goals at hand. The new open business models seek to
bring consumer and seller interests into closer alignment. The new science
commons seek to create more powerful types of research collaboration. The open
educational resources movement wants knowledge to circulate more freely and
students to direct their own learning.

For the short term, the fledgling models in these fields are likely to be seen
as interesting novelties on the periphery of the mainstream. In time, however,
given what we know about network dynamics, the new models are likely to
supplant or significantly transform many basic parameters of business, science,
and education. The participatory practices that open networks enable are
showing that knowledge is more about socially dynamic relationships than about
fixed bodies of information. These relationships are also spawning new
challenges to institutional authority and expertise. If one looks closely
enough, the matrix for a very different order of knowledge, institutional life,
and personal engagement can be seen.


----------------------------------------
10 THE NEW OPEN BUSINESS MODELS
-------------------------------

/The commons and the market can be great partners if each shows respect for the
other and ingenuity in working together./

Entrepreneur John Buckman concedes that his Internet record label, Magnatune,
amounts to “building a business model on top of chaos.”[^334] That is to
say, he makes money by honoring open networks and people's natural social
inclinations. The company rejects the proprietary muscle games used by its
mainstream rivals, and instead holds itself to an ethical standard that verges
on the sanctimonious: “We are not evil.” In the music industry these days,
a straight shooter apparently has to be that blunt.

Magnatune is a four-person enterprise based in Berkeley, California, that since
2003 has been pioneering a new open business model for identifying and
distributing high-quality new music. It does not lock up the music with
anticopying technology or digital rights management. It does not exploit its
artists with coercive, unfair contracts. It does not harass its customers for
making unauthorized copies. Internet users can in fact listen to all of
Magnatune's music for free (not just music snippets) via online
streaming.[^335]

Buckman, a former software programmer turned entrepreneur in his thirties,
previously founded and ran Lyris Technologies, an e-mail list management
company that he sold in 2005. In deciding to start Magnatune, he took note of
the obvious realities that the music industry has tried to ignore: radio is
boring, CDs cost too much, record labels exploit their artists, file sharing is
not going to go away, people love to share music, and listening to music on the
Internet is too much work. “I thought, why not make a record label that has a
clue?” said Buckman.[^336]

Well before the band Radiohead released its In /Rainbows/ album with a “pay
what you want” experiment, Magnatune was inviting its customers to choose the
amount they would be willing to pay, from $5 to $18, for any of Magnatune's 547
albums. Buckman explains that the arrangement signals a respect for customers
who, after all, have lots of free music choices. It also gives them a chance to
express their appreciation for artists, who receive 50 percent of the sales
price. “It turns out that people are quite generous and they pay on average
about $8.40, and they really don't get anything more for paying more other than
feeling like they're doing the right thing,” said Buckman.[^337] About 20
percent pay more than $12.[^338]

“The reality is today nobody really needs to pay for music at all,” he
acknowledges. “If you choose to hit the ‘buy' button at Magnatune then
you're one of the people who has decided to actually pay for music. Shouldn't
we reflect that honest behavior back and say, well, if you're one of the honest
people how much do you want to pay?”[^339] The set-your-own-price approach is
part of Magnatune's larger strategy of building the business by cultivating
open, interactive relationships with its customers and artists. “If you set
up a trusting world,” explains Buckman, “you can be rewarded.”

Magnatune's business model embraces the openness of the Internet and makes it a
virtue, rather than treating it as a bothersome liability that must be
elaborately suppressed. All of Magnatune's music is released as MP3 files, with
no digital rights management, under a CC Attribution-NonCommercial-ShareAlike
license. This means that customers can legally make their own remixes and
covers of songs, and take samples, so long as the uses are noncommercial and
carry the same CC license. Magnatune also invites customers to give free
downloads of purchased music to three friends. Podcasters have free access to
the entire Magnatune catalog.

By using a CC license, Magnatune saves a bundle by not having to oversee
complex terms and conditions for usage of music. Nor does it have to maintain a
DRM system and police the behavior of its customers, both of which squander a
key marketing asset: consumer goodwill. Instead, the music circulates freely
and, in so doing, expands public awareness of Magnatune's 244 artists.

Two-thirds of Magnatune's revenues comes from licensing its music to films,
ads, television, and shops. Like so many open business models, it has carved
out a mid-tier niche between “expensive and proprietary” and “cheap and
crummy.” Most mainstream music licensing involves either expensive, highly
lawyered deals with record labels or insipid stock music from royalty-free CDs.
Magnatune's innovation is to offer high-quality music in multiple genres at
flatrate licenses for sixteen different usage scenarios. The deals can be
easily consummated via the Web; artists share in half the proceeds. No
accounting flimflam. To date, Magnatune has licensed its music to more than one
thousand indie films and many commercials.

Magnatune is a small, fledgling enterprise in the $4 billion music industry. It
does not have all the answers, and it may be sideswiped by bigger players at
some point. But Magnatune is lean, nimble, profitable, and growing. It has
shown how innovative business models can flourish in the open environment of
the Internet. Unlike its bloated, besieged competitors, Magnatune is willing to
listen closely to its customers, artists, and licensing clients. It is
fair-minded and straightforward; it wants to share the wealth and let the music
flow.

OPEN NETWORKS SPUR NEW BUSINESS MODELS
......................................

Openness does not come intuitively to many businesses. Competitive advantage
has long been associated with exclusive control and secrecy. But as the
Internet's power expands, conventional businesses are feeling pressures to
rethink their “closed” business models. A new breed of “open
businesses” is demonstrating that a reliance on open-source software, open
content, and an ethic of transparency in dealings with all corporate
stakeholders can be tremendously competitive.

Open businesses understand the Great Value Shift discussed in chapter 5 —
that working through open networks and commons is likely to generate greater
consumer attention, engagement, and loyalty — and thus sales — and may
outperform a more exclusive regime of control. Working on an open network is
also the best way for a company to get smarter faster, and to stay alert to
changing market conditions. It bears noting that business models are not an
either/or choice — that is, all open or all closed. There is a continuum of
choices, as we will see below. Sometimes there are heated strategic and moral
debates about what level of openness to adopt, yet the general trend in
business today is clear: toward openness.

Even as broadcast networks decry the posting of copyrighted television programs
on YouTube, they clearly welcome the ratings spikes that ensue. Wireless
telephony is fragmented among many proprietary systems, but pressures are now
growing to make them compete on an open platform.[^340] European regulators are
calling for “open document format” standards to prevent Microsoft from
abusing its proprietary standards in its Office suite of software. There are
even calls for open standards for avatars in virtual worlds like Second Life,
The Lounge, and Entropia Universe, so that our digital alter egos can glide
from one virtual community to another.[^341]

Why this inexorable trend toward openness? Because on open networks, excessive
control can be counterproductive. The overall value that can be created through
interoperability is usually greater than the value that any single player may
reap from maintaining its own “walled network.”[^342] For a company to reap
value from interoperability, however, it must be willing to compete on an open
platform and it must be willing to share technical standards, infrastructure,
or content with others. Once this occurs, proprietary gains come from competing
to find more sophisticated ways to add value in the production chain, rather
than fighting to monopolize basic resources. Advantage also accrues to the
company that develops trusting relationships with a community of customers.

Free software was one of the earliest demonstrations of the power of online
commons as a way to create value. In his classic 1997 essay “The Cathedral
and the Bazaar,” hacker Eric S. Raymond provided a seminal analysis
explaining how open networks make software development more cost-effective and
innovative than software developed by a single firm.[^343] A wide-open
“bazaar” such as the global Linux community can construct a more versatile
operating system than one designed by a closed “cathedral” such as
Microsoft. “With enough eyes, all bugs are shallow,” Raymond famously
declared. Yochai Benkler gave a more formal economic reckoning of the value
proposition of open networks in his pioneering 2002 essay “Coase's Penguin,
or, Linux and the Nature of the Firm.”[^344] The title is a puckish
commentary on how GNU/Linux, whose mascot is a penguin, poses an empirical
challenge to economist Ronald Coase's celebrated “transaction cost” theory
of the firm. In 1937, Coase stated that the economic rationale for forming a
business enterprise is its ability to assert clear property rights and manage
employees and production more efficiently than contracting out to the
marketplace.

What is remarkable about peer production on open networks, said Benkler, is
that it undercuts the economic rationale for the firm; commons-based peer
production can perform certain tasks more efficiently than a corporation. Those
tasks must be modular and divisible into small components and capable of being
efficiently integrated, Benkler stipulated. The larger point is that value is
created on open networks in very different ways than in conventional markets.
Asserting proprietary control on network platforms may prevent huge numbers of
people from giving your work (free) social visibility, contributing new value
to it, or remixing it. “The only thing worse than being sampled on the
Internet,” said Siva Vaidhyanathan, with apologies to Oscar Wilde, “is not
being sampled on the Internet.”

The /New York Times/'s experience with its paid subscription service,
TimesSelect, offers a great example. The /Times/ once charged about fifty
dollars a year for online access to its premier columnists and news archives.
Despite attracting more than 227,000 subscribers and generating about $10
million a year in revenue, the /Times/ discontinued the service in 2007.[^345]
A /Times/ executive explained that lost subscription revenues would be more
than offset by advertising to a much larger online readership with free access.
The /Financial Times/ and the /Economist/ have dropped their paywalls, and the
/Wall Street Journal/ in effect has done so by allowing free access via search
engines and link sites. From some leading citadels of capitalism, a rough
consensus had emerged: exclusivity can /decrease/ the value of online
content.[^346]

While enormous value can be created on open networks, it can take different
forms, notes David P. Reed, who studies information architectures.[^347] One of
the most powerful types of network value is what Reed calls “Group-Forming
Networks,” or GFNs — or what Benkler might call commons-based peer
production and I would call, less precisely, the commons. Reed talks about
“scale-driven value shifts” that occur as a network grows in size. Greater
value is created as a network moves from a broadcast model (where “content is
king”) to peer production (where transactions dominate) and finally, to a
group-forming network or commons (where jointly constructed value is produced
and shared).

It is unclear, as a theoretical matter, how to characterize the size and
behavior of various “value networks” on the Web today. For simplicity's
stake — and because Web platforms are evolving so rapidly — I refer to two
general value propositions, Web 2.0 and the commons. Web 2.0 is about creating
new types of value through participation in distributed open networks; the
commons is a subset of Web 2.0 that describes fairly distinct, self-governed
communities that focus on their own interests, which usually do not involve
moneymaking.

The rise of Web 2.0 platforms and the commons clearly has some serious
implications for business strategy and organization. Just consider how
Craigslist is displacing millions of dollars of classified newspaper ads; how
open-access journals are threatening the economic base of commercial academic
journals; and how usergenerated content is competing with network television.
At the same time, activities that once occurred through informal social means
(finding a date, organizing a gathering, obtaining word-ofmouth
recommendations) are increasingly becoming commercial endeavors on the Web.
Especially when the commons has strong mechanisms to preserve its
value-creating capacity, such as the GPL, open networks are helping to convert
more market activity into commons-based activity, or at least shifting the
boundary between commodity markets and proprietary, high-value-added markets.
As this dynamic proceeds, the social and the commercial are blurring more than
ever before.

Many “value chains” that have long sustained conventional businesses are
being disrupted. As described in chapter 5, more efficient types of distributed
media are disrupting the production/distribution chain that sustains
Centralized Media. The Long Tail lets online consumers “pull” niche
products that they want rather than enduring a relentless marketing “push”
of products they don't want. Commons-based peer production is a nonmarket
version of the Long Tail: dispersed communities of people with niche interests
can find one another, form social communities, bypass the market, and
collaborate to create the niche resources that they want.

The question facing many businesses is how to develop stable, long-term
business models that can coexist with productive commons, if not leverage them
for market gain. Their goal is to find ingenious ways to “monetize” the
social relationships of online communities (by selling targeted advertising,
personal data, niche products, etc.). Open businesses aim to do this in a
respectful, public-spirited way; other, more traditional firms may have fewer
scruples because, for them, “it's all about the money.”

But here's the rub: a company can go only so far in monetizing the
value-generating capacities of a commons without enclosing it or enraging the
commoners. A company may consider itself shrewd for acquiring the copyrights
for user-generated content, for example, or for blocking user access to
third-party widgets that it disapproves of.[^348] But participants in Web 2.0
communities will protest or simply leave if a corporate host starts to dictate
obnoxious policies. A company can try to run its Web 2.0 platform as a feudal
fiefdom, but it risks inciting users to revolt and start their own (nonmarket)
online communities, reinventing themselves as commoners. Although there is an
implicit social ethic to Web 2.0 platforms, none is necessarily “free” in
the Stallman sense of “freedom.”

Unfortunately, there is no clear consensus about how exactly to define an
“open business.” Accordingly, assessments of their social, political, or
economic virtue can be slippery. Some analysts such as Henry Chesbrough regard
a business as “open” if it relaxes or modifies its intellectual property
controls, or changes its organizational practices, as a way to reap value from
open networks.[^349] Others believe that an open business should use
open-source software, and support the copying and sharing of works through CC
or other open-content licenses. Sometimes the idea of open business is yoked to
a vaguely defined notion of “social responsibility.” It is not always clear
whether this ethic is a moral gloss or a structural feature, but in general
open businesses strive to practice a more open, accountable, and socially
enlightened vision of commerce.

One champion of this vision is OpenBusiness, a Web site jointly created by
Creative Commons UK in partnership with CC Brazil and the FGV Law School in Rio
de Janeiro, Brazil. The mission of OpenBusiness is to “analyze and explain
models by which people can share their knowledge and creativity with others
whilst at the same time enjoying the more traditional incentives of profit,
individual success and societal advancement.”[^350] By its lights, an open
business is commons-friendly if it is committed to “transparency,”
“sustainable systems,” and to putting “the health and welfare of people
above everything else.” An open business also tries to generate as many
“positive externalities” as possible — knowledge, social relationships,
revenues — which it is willing to share with its stakeholders.

It is perhaps best to approach open businesses as an eclectic social phenomenon
in search of a theory. As it has been said about Wikipedia, “It works in
practice, but not in theory.”[^351] It is risky to overtheorize phenomena
that are still fluid and emerging. Still, specific examples of open business
can help us understand some basic principles of open networks, and how some
businesses are using CC licenses to build innovative sorts of enterprises.

SHARE THE WEALTH, GROW A COMMERCIAL ECOSYSTEM
.............................................

The idea that a company can make money by giving away something for free seems
so counterintuitive, if not ridiculous, that conventional business people tend
to dismiss it. Sometimes they protesteth too much, as when Microsoft's Steve
Ballmer compared the GNU GPL to a “cancer” and lambasted open-source
software as having “characteristics of communism.”[^352] In truth,
“sharing the wealth” has become a familiar strategy for companies seeking
to develop new technology markets. The company that is the first mover in an
emerging commercial ecosystem is likely to become the dominant player, which
may enable it to extract a disproportionate share of future market rents.
Giving away one's code or content can be a great way to become a dominant first
mover.

Netscape was one of the first to demonstrate the power of this model with its
release of its famous Navigator browser in 1994. The free distribution to
Internet users helped develop the Web as a social and technological ecosystem,
while helping fuel sales of Netscape's Web server software. (This was before
Microsoft arrived on the scene with its Internet Explorer, but that's another
story.) At a much larger scale, IBM saw enormous opportunities for building a
better product by using GNU/Linux. The system would let IBM leverage other
people's talents at a fraction of the cost and strengthen its service
relationships with customers. The company now earns more than $2 billion a year
from Linux-related services.[^353]

Today, sharing and openness are key to many business strategies. “Open
Source: Now It's an Ecosystem,” wrote /BusinessWeek/ in 2005, describing the
“gold rush” of venture capital firms investing in startups with open-source
products. Most of them planned to give away their software via the Web and
charge for premium versions or for training, maintenance, and support.[^354]

The pioneers in using open platforms to develop commercial ecosystems on the
Internet are Amazon, Google, Yahoo, and eBay. Each has devised systems that let
third-party software developers and businesses extend their platform with new
applications and business synergies. Each uses systems that dynamically
leverage users' social behaviors and so stimulate business — for example,
customer recommendations about books, search algorithms that identify the most
popular Web sites, and reputation systems that enhance consumer confidence in
sellers. Even Microsoft, eager to expand the ecology of developers using its
products, has released 150 of its source code distributions under three
“Shared Source” licenses, two of which meet the Free Software Foundation's
definition of “free.”[^355]

More recently, Facebook has used its phenomenal reach — more than 80 million
active users worldwide — as a platform for growing a diversified ecology of
applications. The company allows software developers to create custom software
programs that do such things as let users share reviews of favorite books, play
Scrabble or poker with others online, or send virtual gifts to friends. Some
apps are just for fun; others are the infrastructure for independent businesses
that sell products and services or advertise. In September 2007, Facebook had
more than two thousand software applications being used by at least one hundred
people.[^356]

OPEN CONTENT AS A GATEWAY TO COMMERCIAL OPPORTUNITIES
.....................................................

Of course, not every business can own a major platform, as Google, eBay, and
Facebook do. Still, there are many other opportunities. One of the most popular
is to use open platforms to attract an audience, and then strike a deal with an
advertiser or commercial distributor, or sell premium services (“get
discovered”). Another approach is to use open content to forge a spirited
community to which things may be sold (“build a market on a commons”).

*/Get discovered./* This dynamic has been played out countless times on
YouTube, MySpace, Facebook, and other high-traffic social networking sites. An
unknown remix artist suddenly becomes famous when his track is discovered by a
network swarm: the story of DJ Danger Mouse that we saw in chapter 6. A band
attracts a huge following through viral word of mouth: the story of Jake
Shapiro and Two Ton Shoe's stardom in South Korea. There are even calculated
scams to get discovered, like the lonelygirl15 series of videos purportedly
shot by a teenage girl in her bedroom, which became a huge Internet sensation
in 2006.[^357]

As any television network will tell you, the capacity to aggregate audiences is
worth a lot of money. The customary way of monetizing this talent is to sell
advertising. Or one can parlay newfound name recognition into side deals with
the mass media, which have always depended upon “star power” as a draw.
Thus, Ana Marie Cox was able to parley her notoriety as a political gossip on
her Wonkette blog into a job as Washington editor of /Time/ magazine. Perez
Hilton, a Hollywood blogger who attracted a following, was offered a lucrative
perch at the E! cable television channel. We saw in chapter 6 how producer
Samuli Torssonen's /Star Wreck/ attracted millions of Internet viewers,
enabling him to strike a deal with Universal Studios to distribute a DVD
version. With the same visions of stardom, or at least paying gigs, in mind,
thousands of bands now have fan sites, music downloads, and banner ads on
MySpace and other sites to promote themselves.[^358]

The CC NonCommercial license is one way to help pursue the “get discovered”
business strategy. The license allows authors to seek a global Internet
audience without having to cede rights to any commercial opportunities. It is
not, however, a terribly reliable way to make money, which is why some artists,
especially musicians, find fault with the implicit promise of the NC license.
Many serious artists regard the NC license as too speculative a mechanism to
get paid for one's creative work. It is a fair complaint, as far as it goes.
The real problem is the closed, highly concentrated music industry, which has a
hammerlock on marketing, radio play, and distribution. Newcomers and mid-tier
talent cannot get past the corporate gatekeepers to reach an audience, let
alone make money.

In an attempt to bridge the sharing economy with the market, and thereby open
up some new channels of commercial distribution for commoners, the Creative
Commons in late 2007 introduced a new protocol, CC+. The new project aims to
make it easier for the owners of NC-licensed content to signal that agreements,
products, or services beyond the scope of the CC licenses are on offer — for
example, commercial licensing, warranties, or higherquality copies. A
photographer who has hundreds of NC-licensed photos on Flickr would be able to
continue to let people use those photos for noncommercial purposes — but
through CC+, he could also sell licensing rights to those who want to use the
photos for commercial purposes. CC+ is a metadata architecture and standard
that allows third-party intermediaries to develop services for consummating
commercial transactions. People can use CC+ as a simple “click-through”
mechanism for acquiring commercial rights for music, photos, text, and other
content.

One of the earliest “copyright management” companies to take advantage of
the CC+ standard was RightsAgent, a Cambridge, Massachusetts, company founded
by Rudy Rouhana. RightsAgent essentially acts as a go-between for people who
create NC-licensed works on the Web and those who wish to buy rights to use
them for commercial purposes. Just as PayPal facilitates the exchange of money
on the Internet, so RightsAgent aspires to be a paid intermediary for
facilitating the sale of user-generated content.

The rise of CC+ and associated companies brings to mind Niva Elkin-Koren's
warning that the Creative Commons licenses can be a slippery slope that merely
promotes a property-oriented, transactional mentality — the opposite of the
commons. On the other hand, many people operating in the noncommercial sharing
economy, such as musicians and photographers, have long complained that, as
much as they enjoy participating in the commons, they still need to earn a
livelihood.

Revver is another company that has developed an ingenious way to promote the
sharing of content, yet still monetize it based on the scale of its
circulation. Revver is a Los Angeles–based startup that hosts user-generated
video. All videos are embedded with a special tracking tag that displays an ad
at the end. Like Google's AdWords system, which charges advertisers for user
“click-throughs” on ad links adjacent to Web content, Revver charges
advertisers for every time a viewer clicks on an ad. The number of ad views can
be tabulated, and Revver splits ad revenues 50-50 with video creators. Key to
the whole business model is the use of the CC AttributionNonCommercial-No
Derivatives license. The license allows the videos to be legally shared, but
prohibits anyone from modifying them or using them for commercial purposes.

One of the most-viewed videos on Revver sparked a minor pop trend. It showed
kids dropping Mentos candies into bottles of CocaCola, which produces an
explosive chemical reaction. The video is said to have generated around
$30,000.[^359] So is new media going to feature silly cat videos and stupid
stunts? Steven Starr, a co-founder of Revver, concedes the ubiquity of such
videos, but is quick to point to “budding auteurs like Goodnight Burbank,
Happy Slip, Studio8 and LoadingReadyRun, all building audiences.” He also
notes that online, creators “can take incredible risks with format and genre,
can grow their own audience at a fraction of network costs, can enjoy free
syndication, hosting, audience-building and ad services at their
disposal.”[^360]

Blip.tv is another video content-sharing Web site that splits ad revenues with
video creators (although it is not automatic; users must “opt in”). Unlike
many videos on YouTube and Revver, blip.tv tends to feature more
professional-quality productions and serialized episodes, in part because its
founders grew out of the “videoblogging” community. Blip.tv espouses an
open business ethic, with shout-outs to “democratization, openness, and
sustainability.” While there is a tradition for companies to spout their
high-minded principles, blip.tv puts some bite into this claim by offering an
open platform that supports many video formats and open metadata standards. And
it allows content to be downloaded and shared on other sites. Users can also
apply Creative Commons licenses to their videos, which can then be identified
by CC-friendly search engines. For all these reasons, Lessig has singled out
blip.tv as a “true sharing site,” in contrast to YouTube, which he calls a
“faking sharing site” that “gives you tools to /make/ it seem as if
there's sharing, but in fact, all the tools drive traffic and control back to a
single site.”[^361]

Lessig's blog post on blip.tv provoked a heated response from blogger Nicholas
Carr, a former executive editor of the /Harvard Business Review/. The
contretemps is worth a close look because it illuminates the tensions between
Web 2.0 as a business platform and Web 2.0 as a commons platform. In
castigating YouTube as a “fake sharing site,” Carr accused Lessig of
sounding like Chairman Mao trying to root out counterrevolutionary forces (that
is, capitalism) with “the ideology of digital communalism.”

  Like Mao, Lessig and his comrades are not only on the wrong side of human
  nature and the wrong side of culture; they're also on the wrong side of
  history. They fooled themselves into believing that Web 2.0 was introducing a
  new economic system — a system of “social production” — that would
  serve as the foundation of a democratic, utopian model of culture creation.
  They were wrong. Web 2.0's economic system has turned out to be, in effect if
  not intent, a system of exploitation rather than a system of emancipation. By
  putting the means of production into the hands of the masses but withholding
  from those same masses any ownership over the product of their work, Web 2.0
  provides an incredibly efficient mechanism to harvest the economic value of
  the free labor provided by the very, very many and concentrate it into the
  hands of the very, very few.

  The Cultural Revolution is over. It ended before it even began. The victors
  are the counterrevolutionaries. And they have $1.65 billion [a reference to
  the sale price of YouTube to Google] to prove it.[^362]

Lessig's response, a warm-up for a new book, /Remix/, released in late 2008,
pointed out that there are really /three/ different economies on the Internet
— commercial, sharing, and hybrid. The hybrid economy now emerging is
difficult to understand, he suggested, because it “neither gives away
everything, nor does it keep everything.” The challenge of open business
models, Lessig argues, is to discover the “golden mean.”

It can be hard to conceptualize a “hybrid sector” when we are accustomed to
dividing the world into “private” and “public” sectors, and
“profit-making” and “nonprofit” enterprises. Open business models
quickly run up against deep-seated prejudices that associate property with
“freedom” and sharing with “communism.” How can there be a middle
ground? Although some like Nicholas Carr seem to hanker for the predatory
enterprises of an earlier capitalism, only this time on Web 2.0 platforms, that
is not likely to happen in a world of distributed computing. Power is too
dispersed for predators to survive very long, and besides, the commoners are
too empowered.

*/ Build a market on a commons./* A number of online business models are based
on building communities of deep social affection and respect, and then using
the community as a platform for selling merchandise, advertising, or products.
Interestingly, some of the most successful “customer relationship” models
revolve around music. The Grateful Dead's strategy of building a business
around a rabid fan base (discussed in chapter 6) occurred well before the
Internet became prevalent. It is paradigmatic of the digital age, nonetheless.
If the band had locked up its music and prohibited free taping of its concert
performances and sharing of homemade tapes, it would have effectively weakened
the fan base that sustained its business model. Sharing concert tapes actually
made Deadheads more inclined to buy t-shirts, official music releases, and
concert tickets because the tape sharing deepened the community's identity and
quasi-spiritual ethic. The Grateful Dead's focus on touring as opposed to
studio albums not only intensified the sharing ethic of its fan base, it
obliged the band to “keep on truckin' ” in order to keep earning money.

The Brazilian /tecnobrega/ music scene discussed briefly in chapter 7 is
another example of artists making money through respectful, in-person
relationships with their fans. In the town of Belém, Brazil, /tecnobrega/
artists release about four hundred CDs every year, but none are sold in stores;
street vendors sell them for $1.50 apiece. The CDs function mostly as
advertising for live “sound system” parties on the outskirts of town that
attract as many as five thousand people and use state-of-the-art audio
technology. Immediately following the performances, some artists also sell a
significant number of “instant CDs” that are of better quality (and more
expensive) than those sold in the streets. (Interestingly, street sales do not
compete with after-concert sales.)

“In their live presentations, the tecnobrega DJ's usually acknowledge the
presence of people from various neighborhoods, and this acknowledgement is of
great value to the audience, leading thousands of buy copies of the recorded
live presentation,” said Ronaldo Lemos of CC Brazil, who has studied Brazil's
record industry.[^363] The same basic model is also at work in other grassroots
musical genres in Brazil, such as baile funk, which originated in the
shantytowns of Rio de Janeiro.

Artists make most of their money from these live performances, not from CDs,
said Lemos. Bands earn an average of $1,100 per solo performance at these
events, and $700 when playing with other bands — this, in a region where the
average monthly income is $350. Altogether, Lemos estimates that the sound
system parties as a business sector earn $1.5 million per month, on fixed
assets of $8 million.

“The band Calypso has been approached several times by traditional record
labels,” said Lemos, “but they turned down all the offers. The reason is
that they make more money by means of the existing business model. In an
interview with the largest Brazilian newspaper, the singer of the band said,
‘We do not fight the pirates. We have become big /because/ of piracy, which
has taken our music to cities where they would never have been.' ” Calypso
has sold more than 5 million albums in Brazil and is known for attracting as
many as fifty thousand people to its concerts, Lemos said.[^364]

Another highly successful open business model in the Brazilian music scene is
TramaVirtual, an open platform on which more than 15,000 musicians have
uploaded some 35,000 albums. Fans can then download the music for free. While
this does not sound like a promising business proposition, it makes a lot of
sense in the context of Brazil's music marketplace. Major record labels release
a minuscule number of new Brazilian music CDs each year, and they sell for
about $10 to $15.[^365] Only the cultured elite can afford music CDs, and the
native musical talent — which is plentiful in Brazil — has no place to go.
With such a constricted marketplace, TramaVirtual has become hugely popular by
showcasing new and interesting music.

TramaVirtual's artistic and social cachet — itself the product of open
sharing in a commons — has enabled it to develop a highly respected brand
identity. “By exploiting the trademark,” said Lemos, “Trama has been able
to create parallel businesses that work with music, but not in the same way
that a record label does.”[^366] For instance, Trama created a business that
sponsors free concerts at universities under its trademark sponsorship. It then
sells marketing rights at the concerts to cosmetic makers and car companies.
Musicians have gained wide public exposure through Trama, and then used that
association to negotiate international record and marketing deals for
themselves. CSS (Cansei de Ser Sexy) won a record contract with the American
label Sub Pop, for example.

For the past five years, a related business model for music on an international
scale has been emerging in Luxembourg. In only three years, Jamendo has amassed
a huge international following in much the same way as TramaVirtual — by
attracting music fans to its open platform for free music sharing. (The name
/Jamendo/ is a mix of the words /jam/ and /crescendo/.) The site is not a music
retailer but a repository for free music — with a business model overlay to
pay the bills. Jamendo's purpose is not to maximize returns to shareholders, in
other words, but to service musicians and fans in a self-sustaining way. It
makes most of its money from “tip jar” donations from fans and from
advertising on the Web pages and streamed music. Ad revenues are shared 50-50
with artists, and any donations are passed along to individual artists, minus a
small transaction fee.

The Jamendo community is sizable and growing. By 2008 it had more than 357,000
active members from around the world. Part of the draw is the catalog of more
than 10,000 albums, all free. Unlike Magnatune, Jamendo does not select the
artists that are featured on its site; everyone is welcome to upload his or her
music. To help fans identify music they like, the site offers many
sophisticated tools. There are some 60,000 member-written reviews, custom
playlists, community ratings of albums, and “folksonomy” tags for albums
and songs.[^*9] Fans are /urged/ to download music through peerto-peer networks
such as BitTorrent and eMule because it reduces Jamendo's bandwidth expenses.

“Users can listen, download, review, remix, and ‘widgetize,'” said
Sylvain Zimmer, the founder and chief technology officer of Jamendo. As part of
its commitment to musicians, the site has a forum for artists and listings of
concerts, as well as open APIs[^*10] so the Jamendo ecosystem can be integrated
into other software.

What's striking about Jamendo is its nonchalant international feel, as if it
were only natural to browse for “deathmetal,” “powerpop,”
“hypnotique,” “ambient,” “psytrance,” and “jazzrock” on the
same site. (These are just a few of the scores of folksonomy tags that can be
used to browse the catalog.) “We are a Babel, not a label,” said Zimmer,
who reports that India and Japan are heavy downloaders of Jamendo music.
Complete, official versions of the site are available in French, the original
language for the site, and now English and German. Incomplete versions of the
site are available in Spanish, Polish, Portuguese, Russian, Turkish, Italian,
Swedish, Czech, and Ukrainian.

Virtually all the albums on Jamendo use one or more of the six basic CC
licenses. The CC ethic is a perfect match for the company's community-driven
business model, said Zimmer. “The best way of detecting CC-incompatible
content and commercial uses of NC-licensed work is the community. The Creative
Commons makes the community feel more confident and active.”[^367] He adds
that if the site's managers run too many ads, “the community will tell
you.”

COMMONERS AS CO-CREATORS OF VALUE
.................................

For businesses operating on open networks, it is a mistake to regard people
merely as customers; they are collaborators and even coinvestors. As more
companies learn to interact closely with their customers, it is only natural
that conversations about the product or service become more intimate and
collaborative. The roles of the “consumer” and “producer” are starting
to blur, leading to what some business analysts call the “prosumer”[^368]
and the “decentralized co-creation of value.”[^369] The basic idea is that
online social communities are becoming staging areas for the advancement of
business objectives. Businesses see these communities as cost-effective ways to
identify promising innovations, commercialize them more rapidly, tap into more
reliable market intelligence, and nurture customer goodwill.

Amateurs who share with one another through a loose social commons have always
been a source of fresh ideas. Tech analyst Elliot Maxwell (citing Lessig) notes
how volunteers helped compile the /Oxford English Dictionary/ by contributing
examples of vernacular usage; how the Homebrew Computer Club in the San
Francisco Bay area developed many elements of the first successful personal
computer; and how sharing among auto enthusiasts helped generate many of the
most important early automotive innovations.[^370] In our time, hackers were
the ones who developed ingenious ways to use unlicensed electromagnetic
spectrum as a commons, which we now know as Wi-Fi. They tinkered with the iPod
to come up with podcasts, a new genre of broadcasting that commercial
broadcasters now emulate.[^371] Numerous self-organized commons have incubated
profitable businesses. Two movie buffs created the Internet Movie Database as
separate Usenet newsgroups in 1989; six years later they had grown so large
that they had merged and converted into a business that was later sold to
Amazon.[^372] The Compact Disc Database was a free database of software
applications that looks up information about audio CDs via the Internet. It was
originally developed by a community of music fans as a shared database, but in
2000 it had grown big enough that it was sold and renamed Gracenote.[^373]

A commons can be highly generative because its participants are tinkering and
innovating for their own sake — for fun, to meet a challenge, to help someone
out. Amateurs are not constrained by conventional business ideas about what may
be marketable and profitable. They do not have to meet the investment
expectations of venture capitalists and Wall Street. Yet once promising new
ideas do surface in the commons, market players can play a useful role in
supplying capital and management expertise to develop, improve, and
commercialize an invention.

Because online commons are such a rich source of new ideas, the most farsighted
companies are trying to learn how they might be harnessed to help them innovate
and compete more effectively. MIT professor Eric von Hippel is one of the
foremost researchers of this process. His 2005 book /Democratizing Innovation/
describes how the leading participants in high-performance sports — extreme
skiing, mountain biking, skateboarding, surfing, and hot-rodding — are
forming “innovation communities” that work closely with
manufacturers.[^374] The most active practitioners of these sports are
intimately familiar with the equipment and have their own imaginative ideas
about what types of innovations the sport needs. Indeed, many of them have
already jerry-rigged their own innovations — better cockpit ventilation in
sailplanes, improved boot and bindings on snowboards, a method for cutting
loose a trapped rope used by canyon climbers. For companies willing to listen
to and collaborate with users, says von Hippel, “communities of interest are
morphing into communities of creation and communities of production.”

“Users that innovate can develop exactly what they want, rather than relying
on manufacturers to act as their (often very imperfect) agents,” von Hippel
writes. “Moreover, individuals users do not have to develop everything they
need on their own: they can benefit from innovations developed and freely
shared by others.”[^375] Besides finding empirical examples of this trend,
von Hippel has developed a theoretical vocabulary for understanding how
collaborative innovation occurs. He probes the user motivations for “free
revealing” of their knowledge, the attractive economics that fuel “users'
low-cost innovation niches,” and the public policies that sometimes thwart
user-driven innovation (patent rights for a field may be fragmented,
anticopying restrictions such as the Digital Millennium Copyright Act may
prevent user tinkering, etc.).

User-driven innovation is not as esoteric as the “extreme sports” examples
may suggest. It is, in fact, a growing paradigm. In one of the more celebrated
examples, Lego, the Danish toymaker, invited some of its most fanatic users to
help it redesign its Mindstorms robotics kit. The kits are meant to let kids
(and adults) build a variety of customized robots out of a wild assortment of
plastic Lego pieces, programmable software, sensors, and motors.[^376] In 2004,
when some Lego users reverse-engineered the robotic “brain” for the
Mindstorms kit and put their findings on the Internet, Lego at first
contemplated legal action. Upon reflection, however, Lego realized that hackers
could be a valuable source of new ideas for making its forthcoming Mindstorms
kit more interesting and cool.

Lego decided to write a “right to hack” provision into the Mindstorms
software license, “giving hobbyists explicit permission to let their
imaginations run wild,” as Brendan I. Koerner wrote in /Wired/ magazine.
“Soon, dozens of Web sites were hosting thirdparty programs that help
Mindstorms users build robots that Lego had never dreamed of: soda machines,
blackjack dealers, even toilet scrubbers. Hardware mavens designed sensors that
were far more sophisticated than the touch and light sensors included in the
factory kit.”[^377] It turns out that not only are Lego fans happy to advise
the company, the open process “engenders goodwill and creates a buzz among
the zealots, a critical asset for products like Mindstorms that rely on
word-of-mouth evangelism,” said Koerner. In the end, he concluded, the
Mindstorm community of fanatics has done “far more to add value to Lego's
robotics kit than the company itself.”

Another improbable success in distributed, user-driven innovation is
Threadless, a Chicago-based t-shirt company. Threadless sells hundreds of
original t-shirt designs, each of which is selected by the user community from
among more than eight hundred designs submitted every week. The proposed
designs are rated on a scale of one to five by the Web site's more than 600,000
active users. Winners receive cash awards, recognition on the Web site, and
their names on the t-shirt label. Every week, Threadless offers six to ten new
t-shirts featuring the winning designs.

In 2006, the company sold more than 1.5 million t-shirts without any
traditional kind of marketing. Its business model is so rooted in the user
community that Threadless co-founders Jake Nickell and Jacob DeHart have
declined offers to sell their t-shirts through conventional, big-name
retailers. Threadless's business model has helped it overcome two major
challenges in the apparel industry, write Harvard Business School professor
Karim R. Lakhani and consultant Jill A. Panetta — the ability “to attract
the right design talent at the right time to create recurring fashion hits,”
and the ability “to forecast sales so as to be better able to match
production cycles with demand cycles.”[^378]

A number of companies have started successful enterprises based on the use of
wikis, the open Web platforms that allow anyone to contribute and edit content
and collaborate. Evan Prodromou, the founder of Wikitravel, a free set of
worldwide travel guides, has identified four major types of wiki businesses:
service providers who sell access to wikis (Wikispace, wetpaint, PBwiki);
content hosters of wikis (wikiHow, Wikitravel, Wikia); consultants who advise
companies how to run their own wikis (Socialtext); and content developers
(WikiBiz, an offshoot of Wikipedia).

Since the success of a wiki-based business depends upon honoring the integrity
of wiki users, Prodromou scorns what he sees as the backhanded strategies of
business models based on “wikinomics” and “crowdsourcing.” He sees such
models as sly attempts to get “suckers” to do free work for the
entrepreneur owning the business. A sustainable commercial wiki, said Prodromou
at a conference, respects the community of users and does not try to exploit
them. It strives to fulfill a “noble purpose” for users and demonstrate in
a transparent way that it offers value. Any hint of trickery or calculation
begins to sow distrust and erode the community. Yet any wiki-based business
must be able to set boundaries that allow the owners to make responsible
business decisions; those decisions, however, must respect the wiki community's
values.[^379]

It is hard to predict what new models of “decentralized cocreation of
value” will take root and flourish, but the experiments are certainly
proliferating. Staples, the office supplies store, now hosts a contest inviting
the public to suggest inventions that Staples can develop and sell under the
its brand name.[^380] A number of massmarket advertisers have hosted
competitions inviting users to create ads for their products. One of the more
interesting frontiers in userdriven innovation is tapping the audience for
investment capital.

SellaBand (“You are the record company”) is a Web site that invites bands
to recruit five thousand “Believers” to invest $10 apiece in their favorite
bands; upon reaching the $50,000 mark, a band can make a professional
recording, which is then posted on the SellaBand site for free downloads. Bands
and fans can split advertising revenues with SellaBand.[^381] Robert Greenwald,
the activist documentary filmmaker, used e-mail solicitations, social networks,
and the blogosphere to ask ordinary citizens to help finance his 2006 film
/Iraq for Sale: The War Profiteers/.[^382]

REINTEGRATING THE SHARING AND COMMERCIAL ECONOMIES
..................................................

If there is persistent skepticism about the very idea of open business models,
from both business traditionalists focused on the bottom line and commoners
committed to sharing, it is because the commons and the commercial economy seem
to represent such divergent moral values and social orders. One depends upon
reciprocal exchanges of monetary value, with the help of individual property
rights and contracts; the other depends upon the informal social circulation of
value, without individual property rights or quid pro quos. A market is
impersonal, transactional, and oriented to a bottom line; a commons tends to be
personal and social and oriented to continuous relationships, shared values,
and identity.

Yet, as the examples above show, the market and the commons interpenetrate each
other, yin/yang style. Each “adds value” to the other in synergistic ways.
Historically, this has always been true. Adam Smith, the author of /The Wealth
of Nations/, was also the author of /The Theory of Moral Sentiments/, about the
moral and social norms that undergird market activity. The market has always
depended upon the hidden subsidies of the commons (folk stories, vernacular
motifs, amateur creativity) to drive its engine of wealth creation. And the
commons builds its sharing regimes amid the material wealth produced by the
market (free software is developed on commercially produced computers).

What has changed in recent years is our perceptions. The actual role of the
commons in creative endeavors has become more culturally legible. For
businesses to function well on Web 2.0 platforms, they must more consciously
integrate social and market relationships in functional, sustainable ways. If
the results sometimes seem novel, if not bizarre, it is partly because
networking technologies are making us more aware that markets are not
ahistorical, universal entities; they are rooted in social relationships. Open
business models recognize this very elemental truth, and in this sense
represent a grand gambit to go back to the future.


----------------------------------------
11 SCIENCE AS A COMMONS
-----------------------

/Web 2.0 tools, open access, and CC licenses are helping to accelerate
scientific discovery./

It was one of those embarrassing episodes in science: Two sets of researchers
published papers in a German organic chemistry journal, /Angewandte Chemie/,
announcing that they had synthesized a strange new substance with
“12-membered rings.” Then, as blogger and chemist Derek Lowe tells the
story, “Professor Manfred Cristl of Wurzburg, who apparently knows his
pyridinium chemistry pretty well, recognized this as an old way to make further
pyridinium salts, not funky twelve-membered rings. He recounts how over the
last couple of months he exchanged awkward emails with the two sets of authors,
pointing out that they seem to have rediscovered a 100-year-old reaction. . .
.”[^383]

In the Internet age, people generally assume that these kinds of things can't
happen. All you have to do is run a Web search for “pyridinium,” right? But
as scientists in every field are discovering, the existence of some shard of
highly specialized knowledge does not necessarily mean that it can be located
or understood. After all, a Google search for “pyridinium” turns up 393,000
results. And even peer reviewers for journals (who may have been partly at
fault in this instance) have the same problem as any researcher: the
unfathomable vastness of the scientific and technical literature makes it
difficult to know what humankind has already discovered.

Paradoxically, even though academic science played the central role in
incubating the Internet (in conjunction with the military), it has not fared
very well in developing it to advance research. Most search engines are too
crude. Journal articles can be expensive and inaccessible. They do not link to
relevant Web resources or invite reader comment. Nor do they contain metadata
to facilitate computer-based searches, collaborative filtering, and text
mining. Scientific databases are plentiful but often incompatible with one
another, preventing researchers from exploring new lines of inquiry. Lab
researchers who need to share physical specimens still have to shuffle papers
through a bureaucratic maze and negotiate with lawyers, without the help of
eBay- or Craigslist-like intermediaries.

“The World Wide Web was designed in a scientific laboratory to facilitate
access to scientific knowledge,” observed Duke law professor James Boyle in
2007. “In every other area of life — commercial, social networking,
pornography — it has been a smashing success. But in the world of science
itself? With the virtues of the open Web all around us, we have proceeded to
build an endless set of walled gardens, something that looks a lot like
Compuserv or Minitel and very little like a world wide web for
science.”[^384]

Therein lies a fascinating, complicated story. To be sure, various scientific
bodies have made great progress in recent years in adapting the principles of
free software, free culture, and Web 2.0 applications to their research.
Open-access journals, institutional repositories, specialty wikis, new
platforms for collaborative research, new metatagging systems: all are moving
forward in different, fitful ways. Yet, for a field of inquiry that has long
honored the ethic of sharing and “standing on the shoulders of giants,”
academic science has lagged behind most other sectors.

Part of the problem is the very nature of scientific knowledge. While the
conventional Web works fairly well for simple kinds of commerce and social
purposes, the Research Web for science requires a more fine-grained,
deliberately crafted structure.[^385] Science involves /practices/, after all;
it is not just about information. The “wisdom of the crowds” is not good
enough. Scientific knowledge tends to be significantly more specialized and
structured than cultural information or product recommendations. The Web
systems for organizing, manipulating, and accessing that knowledge,
accordingly, need to be more hierarchical and structured, often in quite
specific ways depending upon the discipline. A scientist cannot just type
“signal transduction genes in pyramidal neurons” into a search engine; she
needs to be able to locate specific genes and annotations of them. Data may be
strewn across dozens of different data systems, and those are not likely to be
interoperable. This means that technical standards need to be coordinated, or
some metasystem developed to allow different data reservoirs to communicate
with one another. A scientist must be able to use computers to browse and
organize a vast literature. And so on.

Much as scientists would like to build new types of Internet-based commons,
they have quickly run up against a thicket of interrelated problems: overly
broad copyright and patent limitations; access and usage restrictions by
commercial journal publishers and database owners; and university rules that
limit how cell lines, test animals, bioassays, and other research tools may be
shared. In a sense, scientists and universities face a classic
collective-action problem. Everyone would clearly be better off if a more
efficient infrastructure and enlightened social ethic could be adopted — but
few single players have the resources, incentive, or stature to buck the
prevailing order. There is no critical mass for instigating a new platform for
scientific inquiry and “knowledge management.”

Like so many other sectors confronting the Great Value Shift, science in the
late 1990s found itself caught in a riptide. The proprietarian ethic of
copyright and patent law was intensifying (as we saw in chapter 2), spurring
scientists and universities to claim private ownership in knowledge that was
previously treated as a shared resource.[^386] Yet at the same time the
Internet was demonstrating the remarkable power of open sharing and
collaboration. Even as market players sought to turn data, genetic knowledge,
and much else into private property rights, a growing number of scientists
realized that the best ideals of science would be fulfilled by recommitting
itself to its core values of openness and sharing. Open platforms could also
strengthen the social relationships that are essential to so much scientific
inquiry.[^387]

Perhaps the most salient example of the power of open science was the Human
Genome Project (HGP), a publicly funded research project to map the 3 billion
base pairs of the human genome. Many other scientific projects have been
attracted by the stunning efficacy and efficiency of the open research model.
For example, the HapMap project is a government-supported research effort to
map variations in the human genome that occur in certain clusters, or
haplotypes. There is also the SNP Consortium, a public-private partnership
seeking to identify single-nucleotide polymorphisms (SNPs) that may be used to
identify genetic sources of disease. Both projects use licenses that put the
genomic data into the public domain.

A 2008 report by the Committee for Economic Development identified a number of
other notable open research projects.[^388] There is the PubChem database,
which amasses data on chemical genomics from a network of researchers; the
Cancer Biomedical Informatics Grid, a network of several dozen cancer research
centers and other organizations that shares data, research tools, and software
applications; and TDR Targets a Web clearinghouse sponsored by the World Health
Organization that lets researchers share genetic data on neglected diseases
such as malaria and sleeping sickness. It is telling that Bill Gates, who in
his commercial life is a staunch advocate of proprietary control of
information, has been a leader, through his Bill & Melinda Gates Foundation, in
requiring research grantees to share their data.

There has even been the emergence of open-source biotechnology, which is
applying the principles of free software development to agricultural biotech
and pharmaceutical development.[^389] Richard Jefferson, the founder of Cambia,
a nonprofit research institute in Australia, launched the “kernel” of what
he calls the first opensource biotech toolkit. It includes patented
technologies such as TransBacter, which is a method for transferring genes to
plants, and GUSPlus, which is a tool for visualizing genes and understanding
their functions.[^390] By licensing these patented research tools for open use,
Jefferson hopes to enable researchers anywhere in the world— not just at
large biotech companies or universities — to develop their own crop
improvement technologies.

THE VIRAL SPIRAL IN SCIENCE
...........................

Sociologist Robert Merton is often credited with identifying the social values
and norms that make science such a creative, productive enterprise. In a
notable 1942 essay, Merton described scientific knowledge as “common
property” that depends critically upon an open, ethical, peer-driven
process.[^391] Science is an engine of discovery precisely because research is
available for all to see and replicate. It has historically tried to keep some
distance from the marketplace for fear that corporate copyrights, patents, or
contractual agreements will lock up knowledge that should be available to
everyone, especially future scientists.[^392] Secrecy can also make it
difficult for the scientific community to verify research results.

Although scientific knowledge eventually becomes publicly available, it usually
flows in semi-restricted ways, at least initially, because scientists usually
like to claim personal credit for their discoveries. They may refuse to share
their latest research lest a rival team of scientists gain a competitive
advantage. They may wish to claim patent rights in their discoveries.

So scientific knowledge is not born into the public sphere, but there is a
strong presumption that it ought to be treated as a shared resource as quickly
as possible. As law scholar Robert Merges noted in 1996, “Science is not so
much given freely to the public as shared under a largely implicit code of
conduct among a more or less well identified circle of similarly situated
scientists. In other words . . . science is more like a limited-access commons
than a truly open public domain.”[^393] In certain disciplines, especially
those involving large capital equipment such as telescopes and particle
accelerators, the sharing of research is regarded as a kind of membership rule
for belonging to a club.

As Web 2.0 innovations have demonstrated the power of the Great Value Shift,
the convergence of open source, open access, and open science has steadily
gained momentum.[^394] Creative Commons was mindful of this convergence from
its beginnings, but it faced formidable practical challenges in doing anything
about it. “From the very first meetings of Creative Commons,” recalled law
professor James Boyle, a CC board member, “we thought that science could be
the killer app. We thought that science could be the place where Creative
Commons could really make a difference, save lives, and have a dramatic impact
on the world. There is massive, unnecessary friction in science and we think we
can deal with it. Plus, there's the Mertonian ideal of science, with which
Creative Commons couldn't fit more perfectly.”[^395]

But despite its early interest in making the Web more research-friendly,
Creative Commons realized that science is a special culture unto itself, one
that has so many major players and niche variations that it would be foolhardy
for an upstart nonprofit to try to engage with it. So in 2002 Creative Commons
shelved its ambitions to grapple with science as a commons, and focused instead
on artistic and cultural sectors. By January 2005, however, the success of the
CC licenses emboldened the organization to revisit its initial idea. As a
result of deep personal engagement by several Creative Commons board members
— computer scientist Hal Abelson, law professors James Boyle and Michael
Carroll, and film producer Eric Saltzman — Creative Commons decided to launch
a spin-off project, Science Commons. The new initiative would work closely with
scientific disciplines and organizations to try to build what it now calls
“the Research Web.”

Science Commons aims to redesign the “information space” — the
technologies, legal rules, institutional practices, and social norms — so
that researchers can more easily share their articles, datasets, and other
resources. The idea is to reimagine and reinvent the “cognitive
infrastructures” that are so critical to scientific inquiry. Dismayed by the
pressures exerted by commercial journal publishers, open-access publishing
advocate Jean-Claude Guédon has called on librarians to become
“epistemological engineers.”[^396] They need to design better systems
(technical, institutional, legal, and social) for identifying, organizing, and
using knowledge. The payoff? Speedier research and greater scientific discovery
and innovation. It turns out that every scientific discipline has its own
special set of impediments to address. The recurring problem is massive,
unnecessary transaction costs. There is an enormous waste of time, expense,
bureaucracy, and logistics in acquiring journal articles, datasets,
presentations, and physical specimens.

If transaction costs could be overcome, scientists could vastly accelerate
their research cycles. They could seek answers in unfamiliar bodies of research
literature. They could avoid duplicating other people's flawed research
strategies. They could formulate more imaginative hypotheses and test them more
rapidly. They could benefit from a broader, more robust conversation (as in
free software — “with enough eyes, all bugs are shallow”) and use
computer networks to augment and accelerate the entire scientific process.

That is the vision of open science that Science Commons wanted to address in
2005. It recognized that science is a large, sprawling world of many
institutional stakeholders controlling vast sums of money driving
incommensurate agendas. In such a milieu, it is not easy to redesign some of
the most basic processes and norms for conducting research. Science Commons
nonetheless believed it could play a constructive role as a catalyst.

It was fortunate to have some deep expertise not just from its board members,
but from two Nobel Prize winners on its scientific advisory panel (Sir John
Sulston and Joshua Lederberg) and several noted scholars (patent scholar Arti
Rai, innovation economist Paul David, and open-access publishing expert Michael
B. Eisen). The director of Science Commons, John Wilbanks, brought a rare mix
of talents and connections. He was once a software engineer at the World Wide
Web Consortium, specializing in the Semantic Web; he had founded and run a
company dealing in bioinformatics and artificial intelligence; he had worked
for a member of Congress; and he was formerly assistant director of the Berkman
Center at Harvard Law School.

After obtaining free office space at MIT, Wilbanks set off to instigate change
within the scientific world — and then get out of the way. “We're designing
Science Commons to outstrip ourselves,” Wilbanks told me. “We don't want to
control any of this; we're designing it to be decentralized. If we try to
control it, we'll fail.”

With a staff of seven and a budget of only $800,000 in 2008, Science Commons is
not an ocean liner like the National Academy of Science and the National
Science Foundation; it's more of a tug-boat. Its strategic interventions try to
nudge the big players into new trajectories. It is unencumbered by bureaucracy
and entrenched stakeholders, yet it has the expertise, via Creative Commons, to
develop standard licensing agreements for disparate communities. It knows how
to craft legal solutions that can work with technology and be understood by
nonlawyers.

In 2006, Science Commons embarked upon three “proof of concept” projects
that it hopes will be models for other scientific fields. The first initiative,
the Scholar's Copyright Project, aspires to give scientists the “freedom to
archive and reuse scholarly works on the Internet.” It is also seeking to
make the vast quantities of data on computerized databases more accessible and
interoperable, as a way to advance scientific discovery and innovation.

A second project, the Neurocommons, is a bold experiment that aims to use the
Semantic Web to make a sprawling body of neurological research on the Web more
accessible. The project is developing a new kind of Internet platform so that
researchers will be able to do sophisticated searches of neuroscience-related
journal articles and explore datasets across multiple databases.

Finally, Science Commons is trying to make it cheaper and easier for
researchers to share physical materials such as genes, proteins, chemicals,
tissues, model animals, and reagents, which is currently a cumbersome process.
The Biological Materials Transfer Project resembles an attempt to convert the
pony express into a kind of Federal Express, so that researchers can use an
integrated electronic data system to obtain lab materials with a minimum of
legal complications and logistical delays.

In many instances, Science Commons has been a newcomer to reform initiatives
already under way to build open repositories of scientific literature or data.
One of the most significant is the openaccess publishing movement, which has
been a diverse, flourishing effort in academic circles since the 1990s. It is
useful to review the history of the open access (OA) movement because it has
been an important pacesetter and inspiration for the open-science ethic.

THE OPEN-ACCESS MOVEMENT
........................

The open-access movement has a fairly simple goal: to get the scientific record
online and available to everyone. It regards this task as one of the most
fundamental challenges in science. Open-access publishing generally consists of
two modes of digital access — openaccess archives (or “repositories”) and
open-access journals. In both instances, the publisher or host institution pays
the upfront costs of putting material on the Web so that Internet users can
access the literature at no charge.[^*11]

The appeal of OA publishing stems from the Great Value Shift described in
chapter 5. “OA owes its origin and part of its deep appeal to the fact that
publishing to the Internet permits both wider dissemination and lower costs
than any previous form of publishing,” writes Peter Suber, author of /Open
Access News/ and a leading champion of OA.[^397] “The revolutionary
conjunction is too good to pass up. But even lower costs must be recovered if
OA is to be sustainable.” In most cases, publishing costs are met by
scientific and academic institutions and/or by subsidies folded into research
grants. Sometimes an OA journal will defray its publishing costs by charging
authors (or their grant funders) a processing fee for articles that they
accept.

Just as free software and music downloads have disrupted their respective
industries, so OA publishing has not been a welcome development among large
academic publishers such as Elsevier, Springer, Kluwer, and Wiley. Online
publishing usually costs much less than traditional print publishing and it
allows authors to retain control over their copyrights. Both of these are a big
incentive for disciplines and universities to start up their own OA journals.
In addition, OA publishing makes it easier for research to circulate, and for
authors to reach larger readerships. This not only augments the practical goals
of science, it bolsters the reputation system and open ethic that science
depends upon.

Commercial publishers have historically emphasized their shared interests with
scholars and scientists, and the system was amicable and symbiotic. Academics
would produce new work, validate its quality through peer review, and then, in
most cases, give the work to publishers at no charge. Publishers shouldered the
expense of editorial production, distribution, and marketing and reaped the
bulk of revenues generated. The arrangement worked fairly well for everyone
until journal prices began to rise in the early 1970s. Then, as subscription
rates continued to soar, placing unbearable burdens on university libraries in
the 1990s, the Internet facilitated an extremely attractive alternative:
open-access journals. Suddenly, conventional business models for scholarly
publishing had a serious rival, one that shifts the balance of power back to
scientists and their professional communities.

Publishers have long insisted upon acquiring the copyright of journal articles
and treating them as “works for hire.” This transfer of ownership enables
the publisher, not the author, to determine how a work may circulate. Access to
an article can then be limited by the subscription price for a journal, the
licensing fees for online access, and pay-per-view fees for viewing an
individual article. Publishers may also limit the reuse, republication, and
general circulation of an article by charging high subscription or licensing
fees, or by using digital rights management. If a university cannot afford the
journal, or if a scholar cannot afford to buy individual articles, research
into a given topic is effectively stymied.

Open-access champion John Willinsky notes, “The publishing economy of
scholarly journals is dominated by a rather perverse property relation, in
which the last investor in the research production chain — consisting of
university, researcher, funding agency and /publisher/ — owns the resulting
work outright through a very small investment in relation to the work's overall
cost and value.”[^398] Scientists and scholars virtually never earn money
from their journal articles, and only occasionally from their books. Unlike
commercial writers, this is no problem for academics, whose salaries are
intended to free them to study all sorts of niche interests despite the lack of
“market demand.” Their works are not so much “intellectual property”
that must yield maximum revenues as “royaltyfree literature,” as Peter
Suber calls it. Academics write and publish to contribute to their fields and
enhance their standing among their peers.

Not surprisingly, many commercial publishers regard OA publishing as a
disruptive threat. It can, after all, subvert existing revenue models for
scholarly publishing. This does not mean that OA publishing cannot support a
viable business model. Much of OA publishing is sustained through
“author-side payments” to publishers. In certain fields that are funded by
research grants, such as biomedicine, grant makers fold publishing payments
into their grants so that the research can be made permanently available in
open-access journals. A leading commercial publisher, BioMed Central, now
publishes over 140 OA journals in this manner. Hindawi Publishing Corporation,
based in Cairo, Egypt, publishes more than one hundred OA journals and turns a
profit. And Medknow Publications, based in Mumbai, India, is also profitable as
a publisher of more than forty OA journals.

It remains an open question whether the OA business model will work in fields
where little research is directly funded (and thus upfront payments are not
easily made). As Suber reports, “There are hundreds of OA journals in the
humanities, but very, very few of them charge a fee on the author's side; most
of them have institutional subsidies from a university say, or a learned
society.”[^399] Yet such subsidies, in the overall scheme of things, may be
more attractive to universities or learned societies than paying high
subscription fees for journals or online access.

The tension between commercial publishers and academic authors has intensified
over the past decade, fueling interest in OA alternatives. The most salient
point of tension is the so-called “serials crisis.” From 1986 to 2006,
libraries that belong to the Association of Research Libraries saw the cost of
serial journals rise 321 percent, or about 7.5 percent a year for twenty
consecutive years.[^400] This rate is four times higher than the inflation rate
for those years. Some commercial journal publishers reap profits of nearly 40
percent a year.[^401] By 2000 subscription rates were so crushing that the
Association of American Universities and the Association of Research Libraries
issued a joint statement that warned, “The current system of scholarly
publishing has become too costly for the academic community to
sustain.”[^402] Three years later, the high price of journals prompted
Harvard, the University of California, Cornell, MIT, Duke, and other elite
research universities to cancel hundreds of journal subscriptions — a
conspicuous act of rebellion by the library community.

As journal prices have risen, the appeal of OA publishing has only intensified.
Unfortunately, migrating to OA journals is not simply an economic issue. Within
academia, the reputation of a journal is deeply entwined with promotion and
tenure decisions. A scientist who publishes an article in /Cell/ or /Nature/
earns far more prestige than she might for publishing in a little-known OA
journal.

So while publishing in OA journals may be economically attractive, it flouts
the institutional traditions and social habits that scientists have come to
rely on for evaluating scientific achievement. The OA movement's challenge has
been to document how OA models can help a university, and so it has
collaborated with university administrators to showcase exemplary successes and
work out new revenue models. It is urging promotion and tenure committees, for
example, to modify their criteria to stop discriminating against new journals
just because they are new, and hence to stop discriminating against OA journals
(which are all new). Much of this work has fallen to key OA leaders like the
Open Society Institute, the Hewlett Foundation, Mellon Foundation and the
library-oriented SPARC (Scholarly Publishing and Academic Resources Coalition)
as well as individuals such as John Willinsky, Jean-Claude Guédon, Stevan
Harnad, and Peter Suber.

One of the first major salvos of the movement came in 2000, when biomedical
scientists Harold E. Varmus, Patrick O. Brown, and Michael B. Eisen called on
scientific publishers to make their literature available through free online
public archives such as the U.S. National Library of Medicine's PubMed Central.
Despite garnering support from nearly 34,000 scientists in 180 countries, the
measure did not stimulate the change sought. It did alert the scientific world,
governments, and publishers about the virtues of OA publishing, however, and
galvanized scientists to explore next steps.

At the time, a number of free, online peer-reviewed journals and free online
archives were under way.[^403] But much of the momentum for organized OA
movement began in 2001, when the Open Society Institute convened a group of
leading librarians, scientists, and other academics in Hungary. In February
2002 the group released the Budapest Open Access Initiative, a statement that
formally describes “open access” as the freedom of users to “read,
download, copy, distribute, print, search or link to the full texts of . . .
articles, crawl them for indexing, pass them as data to software, or use them
for any other lawful purpose, without financial, legal or technical barriers
other than those inseparable from gaining access to the Internet
itself.”[^404] Two subsequent statements, the Bethesda Declaration and the
Berlin Declaration, in June 2003 and October 2003, respectively, expanded upon
the definitions of open access and gave the idea new prominence. (Suber calls
the three documents the “BBB definition” of open access.)[^405]

Creative Commons licenses have been critical tools in the evolution of OA
publishing because they enable scientists and scholars to authorize in advance
the sharing, copying, and reuse of their work, compatible with the BBB
definition. The Attribution (BY) and Attribution-Non-Commercial (BY-NC)
licenses are frequently used; many OA advocates regard the Attribution license
as the preferred choice. The protocols for “metadata harvesting” issued by
the Open Archives Initiative are another useful set of tools in OA publishing.
When adopted by an OA journal, these standardized protocols help users more
easily find research materials without knowing in advance which archives they
reside in, or what they contain.

There is no question that OA is transforming the market for scholarly
publishing, especially as pioneering models develop. The Public Library of
Science announced its first two open-access journals in December 2002. The
journals represented a bold, high-profile challenge by highly respected
scientists to the subscription-based model that has long dominated scientific
publishing. Although Elsevier and other publishers scoffed at the economic
model, the project has expanded and now publishes seven OA journals, for
biology, computational biology, genetics, pathogens, and neglected tropical
diseases, among others.

OA received another big boost in 2004 when the National Institutes for Health
proposed that all NIH-funded research be made available for free one year after
its publication in a commercial journal. The $28 billion that the NIH spends on
research each year (more than the domestic budget of 142 nations!) results in
about 65,000 peer-reviewed articles, or 178 every day. Unfortunately,
commercial journal publishers succeeded in making the proposed OA policy
voluntary. The battle continued in Congress, but it became clear that the
voluntary approach was not working. Only 4 percent of researchers published
their work under OA standards, largely because busy, working scientists did not
consider it a priority and their publishers were not especially eager to help.
So Congress in December 2007 required NIH to mandate open access for its
research within a year of publication.[^406]

What may sound like an arcane policy battle in fact has serious implications
for ordinary Americans. The breast cancer patient seeking the best
peer-reviewed articles online, or the family of a person with Huntington's
disease, can clearly benefit if they can acquire, for free, the latest medical
research. Scientists, journalists, health-care workers, physicians, patients,
and many others cannot access the vast literature of publicly funded scientific
knowledge because of high subscription rates or per-article fees. A freely
available body of online literature is the best, most efficient way to help
science generate more reliable answers, new discoveries, and commercial
innovations.

While large publishers continue to dominate the journal market, OA publishing
has made significant advances in recent years. In June 2008, the Directory of
Open Access Journals listed more than 3,400 open-access journals containing
188,803 articles. In some fields such as biology and bioinformatics, OA
journals are among the top-cited journals. In fact, this is one of the great
advantages of OA literature. In the networked environment, articles published
in OA journals are more likely to be discovered by others and cited, which
enhances the so-called impact of an article and the reputation of an author.

Although journals may or may not choose to honor OA principles, any scientist,
as the copyright holder of his articles, can choose to “self-archive” his
work under open-access terms. But commercial publishers generally don't like to
cede certain rights, and authors usually don't know what rights to ask for, how
to assert them in legal language, and how to negotiate with publishers. So it
is difficult for most academics to assert their real preferences for open
access. To help make things simpler, SPARC and MIT developed what is called an
“author's addendum.” It is a standard legal contract that authors can
attach to their publishing contracts, in which they reserve certain key rights
to publish their works in OA-compliant ways.

THE SCHOLAR'S COPYRIGHT PROJECT
...............................

In an attempt to help the open-access movement, Science Commons in 2007
developed its own suite of amendments to publishing contracts. The goal has
been to ensure that “at a minimum, scholarly authors retain enough rights to
archive their work on the Web. Every Science Commons Addendum ensures the
freedom to use scholarly articles for educational purposes, conference
presentations, in other scholarly works or in professional activities.”[^407]
The ultimate goal is to enable authors “to have the clear and unambiguous
freedom to engage in their normal everyday scholarly activities without
contending with complex technology, continuous amendments to contracts or the
need for a lawyer.”[^408]

To make the whole process easier for scientists, Science Commons developed the
Scholar's Copyright Addendum Engine. This point-and-click Web-based tool lets
authors publish in traditional, subscription-based journals while retaining
their rights to post copies on the Internet for download, without most
copyright and financial restrictions. There are also options for “drag and
drop” self-archiving to repositories such as MIT's DSpace and the National
Library of Medicine's PubMed Central. Besides making selfarchiving easier and
more prevalent, Science Commons hopes to standardize the legal terms and
procedures for self-archiving to avoid a proliferation of incompatible rights
regimes and document formats. “The engine seems to be generating a dialogue
between authors and publishers that never existed,” said John Wilbanks.
“It's not being rejected out of hand, which is really cool. To the extent
that the addendum becomes a norm, it will start to open up the [contractual]
limitations on self-archiving.”[^409]

Harvard University gave self-archiving a big boost in February 2008 when its
faculty unanimously voted to require all faculty to distribute their
scholarship through an online, open-access repository operated by the Harvard
library unless a professor chooses to “opt out” and publish exclusively
with a commercial journal. Robert Darnton, director of the Harvard library,
said, “In place of a closed, privileged and costly system, [the open-access
rule] will help open up the world of learning to everyone who wants to
learn.”[^410] Harvard's move was the first time that a university faculty,
and not just the administration, initiated action to take greater control of
its scholarly publishing. While some critics complain the new policy does not
go far enough, most OA advocates hailed the decision as a major step toward
developing alternative distribution models for academic scholarship.

By far, the more ambitious aspect of the Scholar's Copyright project is the
attempt to free databases from a confusing tangle of copyright claims. In every
imaginable field of science — from anthropology and marine biology to
chemistry and genetics — databases are vital tools for organizing and
manipulating vast collections of empirical data. The flood of data has vastly
increased as computers have become ubiquitous research tools and as new
technologies are deployed to generate entirely new sorts of digital data
streams— measurements from remote sensors, data streams from space, and much
more. But the incompatibility of databases — chiefly for technical and
copyright reasons — is needlessly Balkanizing research to the detriment of
scientific progress. “There is plenty of data out there,” says Richard
Wallis of Talis, a company that has built a Semantic Web technology platform
for open data, “but it is often trapped in silos or hidden behind logins,
subscriptions or just plain difficult to get hold of.” He added that there is
a lot of data that is “just out there,” but the terms of access may be
dubious.[^411]

Questions immediately arise: Can a database be legally used? Who owns it? Will
the database continue to be accessible? Will access require payment later on?
Since data now reside anywhere in the world, any potential user of data also
has to consider the wide variations of copyright protection for databases
around the world.

The question of how data shall be owned, controlled, and shared is a profoundly
perplexing one. History has shown the virtue of sharing scientific data — yet
individual scientists, universities, and corporations frequently have their own
interests in limiting how databases may be used. Scientists want to ensure the
integrity of the data and any additions to it; they may want to ensure
preferential access to key researchers; companies may consider the data a
lucrative asset to be privately exploited. Indeed, if there is not some
mechanism of control, database producers worry that free riders will simply
appropriate useful compilations and perhaps sell it or use it for their own
competitive advantage. Or they may fail to properly credit the scientists who
compiled the data in the first place. Inadequate database protection could
discourage people from creating new databases in the future.

A National Research Council report in 1999 described the problem this way:
“Currently many for-profit and not-for-profit database producers are
concerned about the possibility that significant portions of their databases
will be copied or used in substantial part by others to create ‘new'
derivative databases. If an identical or substantially similar database is then
either re-disseminated broadly or sold and used in direct competition with the
original rights holder's database, the rights holder's revenues will be
undermined, or in extreme cases, the rights holder will be put out of
business.”[^412]

In the late 1990s, when the Human Genome Project and a private company, Celera,
were competing to map the human genome, the publicly funded researchers were
eager to publish the genome sequencing data as quickly as possible in order to
prevent Celera or any other company from claiming exclusive control over the
information. They wanted the data to be treated as “the common heritage of
humanity” so that it would remain openly accessible to everyone, including
commercial researchers. When Sir John Sulston of the Human Genome Project
broached the idea of putting his team's research under a GPL-like license, it
provoked objections that ownership of the data would set a worrisome precedent.
A GPL for data amounts to a “reach-through” requirement on how data may be
used in the future. This might not only imply that data can be owned —
flouting the legal tradition that facts cannot be owned — it might discourage
future data producers from depositing their data into public databases.[^413]

The International HapMap Project attempted such a copyleft strategy with its
database of genotypes; its goal is to compare the genetic sequences of
different individuals to identify chromosomal regions where genetic variants
are shared.[^414] The project initially required users to register and agree to
certain contract terms in order to use the database. One key term prohibited
users from patenting any genetic information from the database or using patents
to block usage of HapMap data.[^415] This viral, open-content license for data
seemed to provide a solution to the problem of how to keep data in the commons.
But in time the HapMap Project found that its license inhibited people's
willingness to integrate their own data with the HapMap database. It therefore
abandoned its license and now places all of its data into the public domain; it
is now available to be used by anyone for any purpose, although it has issued
guidelines for the “responsible use and publication” of the data.[^416]

The basic problem with applying copyright law to databases is how to draw the
line between what is private property and what remains in the commons. “If
you try to impose a Creative Commons license or free-software-style licensing
regime on a database of uncopyrightable facts,” explained John Wilbanks,
“you create an enormous amount of confusion in the user about where the
rights start and stop.”[^417] It is not very practical for a working
scientist to determine whether copyright protection applies only to the data
itself, to the database model (the structure and organization of the data), or
to the data entry and output sheet. A scientist might reasonably presume that
his data are covered by copyright law, and then use that right to apply a CC
ShareAlike license to the data. But in fact, the data could be ineligible for
copyright protection and so the CC license would be misleading; other
scientists could ignore its terms with impunity. At the other extreme, other
scientists may be unwilling to share their data at all lest the data circulate
with no controls whatsoever. Data are either overprotected or underprotected,
but in either case there is great ambiguity and confusion.

For two years, Science Commons wrestled with the challenge of applying the CC
licenses to databases. Ultimately, the project came to the conclusion that
“copyright licenses and contractual restrictions are simply the wrong tool,
even if those licenses are used with the best of intentions.” There is just
too much uncertainty about the scope and applicability of copyright — and
thus questions about any licenses based on it. For example, it is not entirely
clear what constitutes a “derivative work” in the context of databases. If
one were to query hundreds of databases using the Semantic Web, would the
federated results be considered a derivative work that requires copyright
permissions from each database owner? There is also the problem of
“attribution stacking,” in which a query made to multiple databases might
require giving credit to scores of databases. Different CC licenses for
different databases could also create legal incompatibilities among data. Data
licensed under a CC ShareAlike license, for example, cannot be legally combined
with data licensed under a different license. Segregating data into different
“legal boxes” could turn out to impede, not advance, the freedom to
integrate data on the Web.

After meeting with a variety of experts in scientific databases, particularly
in the life sciences, biodiversity, and geospatial research, the Science
Commons came up with an ingenious solution to the gnarly difficulties. Instead
of relying on either copyright law or licenses, Science Commons in late 2007
announced a new legal tool, CC0 (CC Zero), which creates a legal and technical
platform for a scientific community to develop its own reputation system for
sharing data.

CC0 is not a license but a set of protocols. The protocols require that a
database producer waive all rights to the data based on intellectual property
law — copyrights, patents, unfair competition claims, unfair infringement
rights — a “quitclaim” that covers everything. Then it requires that the
database producer affirmatively declare that it is not using contracts to
encumber future uses of the data. Once a database is certified as complying
with the protocols, as determined by Science Commons, it is entitled to use a
Science Commons trademark, “Open Access Data,” and CC0 metadata. The
trademark signals to other scientists that the database meets certain basic
standards of interoperability, legal certainty, ease of use, and low
transaction costs. The metadata is a functional software tool that enables
different databases to share their data.

“What we are doing,” said John Wilbanks, “is reconstructing,
contractually, the public domain. The idea is that with any conforming
implementation — any licensed database — you have complete freedom to
integrate with anything else. It creates a zone of certainty for data
integration.”[^418] Unlike public-domain data, the databases that Science
Commons certifies as meeting open-data protocols cannot be taken private or
legally encumbered. To qualify to use the Open Access Data mark, databases must
be interoperable with other databases licensed under the protocols. If someone
falsely represents that his data are covered by the license, Science Commons
could pursue a trademark infringement case.

To develop this scheme, Science Commons's attorney Thinh Nguyen worked closely
with Talis, a company that has built a Semantic Web technology platform for
open data and developed its own open database license. Nguyen also worked with
the company's legal team, Jordan Hatcher and Charlotte Waelde, and with the
Open Knowledge Foundation, which has developed the Open Knowledge Definition.

The CC0 approach to data represents something of a breakthrough because it
avoids rigid, prescriptive legal standards for a type of content (data) that is
highly variable and governed by different community norms. CC0 abandons the
vision of crafting a single, all-purpose copyright license or contract for
thousands of different databases in different legal jurisdictions. Instead it
tries to create a legal framework that can honor a range of variable social
norms that converge on the public domain. Each research community can determine
for itself how to meet the CC0 protocols, based on its own distinctive research
needs and traditions. Different norms can agree to a equivalency of
public-domain standards without any one discipline constraining the behaviors
of another.

The system is clever because it provides legal reliability without being overly
prescriptive. It is simple to use but still able to accommodate complex
variations among disciplines. And it has low transaction costs for both
producers and users of data. Over time, the databases that comply with the CC0
protocols are likely to grow into a large universe of interoperable open data.

It is still too early to judge how well the CC0 program is working, but initial
reactions have been positive. “The solution is at once obvious and
radical,” said Glyn Moody, a British journalist who writes about open-source
software. “It is this pragmatism, rooted in how science actually works, that
makes the current protocol particularly important.” Deepak Singh, the
co-founder of Bioscreencast, a free online video tutorial library for the
scientific community, said, “I consider just the announcement to be a
monumental moment.”[^419]

THE NEUROCOMMONS
................

Every day there is so much new scientific literature generated that it would
take a single person 106 years to read it all.[^420] In a single year, over
twenty-four thousand peer-reviewed journals publish about 2.5 million research
articles.[^421] Our ability to generate content has far outstripped our ability
to comprehend it. We are suffering from a cognitive overload — one that can
only be addressed by using software and computer networks in innovative ways to
organize, search, and access information. For many years, Sir Tim Berners-Lee,
the celebrated inventor of the World Wide Web, and his colleagues at the World
Wide Web Consortium (W3C), based at MIT, have been trying to solve the problem
of information overload by developing a “new layer” of code for the Web.

This visionary project, the so-called Semantic Web, aspires to develop a
framework for integrating a variety of systems, so they can communicate with
one another, machine to machine. The goal is to enable computers to identify
and capture information from anywhere on the Web, and then organize the results
in sophisticated and customized ways. “If you search for ‘signal
transduction genes in parameter neurons,' ” said John Wilbanks of Science
Commons, “Google sucks. It will get you 190,000 Web pages.” The goal of the
Semantic Web is to deliver a far more targeted and useful body of specialized
information.

A key tool is the Unique Resource Identifier, or URI, which is analogous to the
Unique Resource Locator, or URL, used by the Web. Affix a URI to any bit of
information on the Web, and the Semantic Web will (so it is hoped) let you mix
and match information tagged with that URI with countless other bits of
information tagged with other URIs. It would not matter if the bit of
information resides in a journal article, database, clinical image, statistical
analysis, or video; the point is that the URI would identify a precise bit of
information. By enabling cross-linking among different types of information,
the idea is that scientists will be able to make all sorts of unexpected and
serendipitous insights.

For example, geneticists studying Huntington's disease, a rare
neurodegenerative disorder, and experts studying Alzheimer's disease are both
exploring many of the same genes and proteins of the brain. But because of the
specialization of their disciplines, the chances are good that they read
entirely different scientific journals and attend different conferences. There
is no easy or systematic way for scientists in one specialty to explore the
knowledge that has developed in another specialty. The Semantic Web could
probably help.

Unfortunately, for a grand dream that has been touted since the 1990s, very
little has developed. The W3C has been embroiled in the design challenges of
the Semantic Web for so long that many companies and computer experts now scoff
at the whole idea of the Semantic Web. There have been too many arcane,
inconclusive debates about computer syntax, ontology language, and
philosophical design choices that no one is holding their breath anymore,
waiting for the Semantic Web to arrive. (Wikipedia defines a computer ontology
as “a data model that represents a set of concepts within a domain and the
relationships between those concepts. It is used to reason about the objects
within that domain.”) The vision of the Semantic Web may have the potential
to revolutionize science, but few people have seen much practical value in it
over the near term, and so it has garnered little support.

Wilbanks, who once worked at the W3C, was frustrated by this state of affairs.
Although he has long believed in the promise of the Semantic Web, he also
realized that it is not enough to extol its virtues. One must demonstrate its
practicality. “The way to herd cats is not to herd cats,” he said, citing a
colleague, “but to put a bowl of cream on your back stoop and run like
hell.” For Wilbanks, the bowl of cream is the Neurocommons knowledge base, a
project that seeks to integrate a huge amount of neuroscientific research using
Semantic Web protocols and is easy to use.

“The way to overcome the inertia that the Semantic Web critics rightly point
out, is not to sit down and argue about ontologies,” said Wilbanks. “It's
to release something that's useful enough that it's worth wiring your database
into the commons system. If I want to get precise answers to complicated
questions that might be found in my own database, among others, now I can do
that. I simply have to wire it into the Neurocommons. You don't need to come to
some magical agreement about ontology; you just need to spend a couple of days
converting your database to RDF [Resource Description Framework, a set of
Semantic Web specifications], and then— boom! — I've got all of the other
databases integrated with mine.” By getting the ball rolling, Science Commons
is betting that enough neuroscience fields will integrate their literature to
the Neurocommons protocols and make the new commons a lively, sustainable, and
growing organism of knowledge.

Using the “open wiring” of the Semantic Web, the Neurocommons has already
integrated information from fifteen of the top twenty databases in the life
sciences and neuroscience. The data have been reformatted to conform to
Semantic Web protocols and the scientific literature, where possible, has been
tagged so that it can be “text-mined” (searched for specific information
via URI tags). “We have put all this stuff into a database that we give
away,” said Wilbanks. “It's already been mirrored in Ireland, and more
mirrors are going up. It's sort of like a ‘knowledge server,' instead of a
Web server.”

Commercial journal publishers already recognize the potential power of owning
and controlling metadata in scientific literature and datasets. To leverage
this control many are starting to make copyright claims in certain kinds of
metadata, and to amend their contracts with libraries in order to limit how
they may retrieve electronic information. “There is a lot at stake here,”
says Villanova law professor Michael Carroll. “What Science Commons wants to
do is make sure that metadata is an open resource.”[^422]

Wilbanks has high hopes that the Neurocommons project, by providing a useful
demonstration of Semantic Web tools, will hasten the interoperability of
specialized knowledge that is currently isolated from related fields. It comes
down to how to motivate a convergence of knowledge. Instead of arguing about
which discipline's ontology of specialized knowledge is superior to another's
— and making little headway toward a consensus — Wilbanks has a strategy to
build a knowledge tool that is useful. Period. His bet is that a useful
“knowledge server” of integrated neuroscientific information will be a
powerful incentive for adjacent disciplines to adapt their own literature and
databases to be compatible. The point is to get the commons going — while
allowing the freedom for it to evolve. Then, if people have disagreements or
quibbles, they will be free to change the ontologies as they see fit. “The
version [of the Neurocommons] that we are building is useful and it is free,”
Wilbanks said. “That means that if you want to integrate with it, you can. It
means that if you want to redo our work your way, you can— as long as you use
the right technical formats. You can reuse all of our software.”

The problem with a field like neuroscience, which has so many exploding
frontiers, is that no single company or proprietary software platform can
adequately manage the knowledge. The information is simply too copious and
complex. Like so many other fields of knowledge that are large and complicated,
it appears that only an open-source model can successfully curate the relevant
information sources. A Web-based commons can be remarkably efficient,
effective, and scalable. This has been the lesson of free and open-source
software, wikis, and the Web itself. Although it is too early to tell how the
Neurocommons project will evolve, the initial signs are promising. A number of
foundations that support research for specific diseases — Alzheimer's
disease, Parkinson's, autism, epilepsy, Huntington's disease — have already
expressed interest in the Neurocommons as a potential model for advancing
research in their respective fields.

OPEN PHYSICAL TOOLS
...................

Science is not just about text and data, of course. It also involves lots of
tangible /stuff/ needed to conduct experiments. Typical materials include cell
lines, monoclonal antibodies, reagents, animal models, synthetic materials,
nano-materials, clones, laboratory equipment, and much else. Here, too, sharing
and collaboration are important to the advance of science. But unlike digital
bits, which are highly malleable, the physical materials needed for experiments
have to be located, approved for use, and shipped. Therein lies another tale of
high transaction costs impeding the progress of science. As Thinh Nguyen,
counsel for Science Commons, describes the problem:

  The ability to locate materials based on their descriptions in journal
  articles is often limited by lack of sufficient information about origin and
  availability, and there is no standard citation for such materials. In
  addition, the process of legal negotiation that may follow can be lengthy and
  unpredictable. This can have important implications for science policy,
  especially when delays or inability to obtain research materials result in
  lost time, productivity and research opportunities.[^423]

To the nonscientist, this transactional subculture is largely invisible. But to
scientists whose lab work requires access to certain physical materials, the
uncertainties, variations, and delays can be crippling. Normally, the transfer
of materials from one scientist to another occurs through a Material Transfer
Agreement, or MTA. The technology transfer office at one research university
will grant, or not grant, an MTA so that a cell line or tissue specimen can be
shipped to a researcher at another university. Typically, permission must be
granted for the researcher to publish, disseminate, or use research results,
and to license their use for commercialization.

While certain types of transactions involve material that could conceivably
generate high royalty revenues, a great many transactions are fairly low-value,
routine transfers of material for basic research. Paradoxically, that can make
it all the harder to obtain the material because consummating an MTA is not a
high priority for the tech transfer office. In other cases, sharing the
material is subject to special agreements whose terms are not known in advance.

Corporations sometimes have MTAs with onerous terms that prevent academic
researchers from using a reagent or research tool. Individual scientists
sometimes balk at sharing a substance because of the time and effort needed to
ship it. Or they may wish to prevent another scientist from being the first to
publish research results. Whatever the motivation, MTAs can act as a serious
impediment to verification of scientific findings. They can also prevent new
types of exploratory research and innovation.

Wilbanks describes the existing system as an inefficient, artisanal one that
needs to becomes more of a streamlined industrial system. Just as Creative
Commons sought to lower the transaction costs for sharing creative works,
through the use of standard public licenses, so Science Commons is now trying
to standardize the process for sharing research materials. The idea is to
reduce the transaction costs and legal risks by, in Nguyen's words, “creating
a voluntary and scalable infrastructure for rights representation and
contracting.”[^424] Like the CC licenses, the Science Commons MTAs will
consist of “three layers” of licenses — the standard legal agreement, the
machine-readable metadata version, and the “humanreadable deed” that
nonlawyers can understand.

There are already some successful systems in place for sharing research
materials, most notably the Uniform Biological Material Transfer Agreement
(UBMTA), which some 320 institutions have accepted, as well as a Simple Letter
Agreement developed by the National Institutes of Health. The problem with
these systems is that they cannot be used for transfers of materials between
academic and for-profit researchers. In addition, there are many instances in
which UBMTA signatories can opt out of the system to make modifications to the
UBMTA on a case-by-case basis.

To help standardize and streamline the whole system for sharing research
materials, Science Commons is working with a consortium of ten research
universities, the iBridge Network, to develop a prototype system. The hope is
that by introducing metadata to the system, and linking that information to
standard contracts and human-readable deeds, scientists will be able to acquire
research materials much more rapidly by avoiding bureaucratic and legal
hassles. Just as eBay, Amazon, and Federal Express use metadata to allow
customers to track the status of their orders, so the Science Commons MTA
project wants to develop a system that will allow searching, tracking, and
indexing of specific shipments. It is also hoped that metadata links will be
inserted into journal articles, enabling scientists to click on a given
research material in order to determine the legal and logistical terms for
obtaining the material.

Wilbanks envisions a new market of third-party intermediaries to facilitate
materials transfers: “There's an emerging network of third parties — think
of them as ‘biology greenhouses' — who are funded to take in copies of
research materials and manufacture them on demand — to grow a quantity and
mail them out. What Science Commons is trying to do with the Materials Transfer
Project is to put together a functional system where materials can go to
greenhouses under standard contracts, with digital identifiers, so that the
materials can be cross-linked into the digital information commons. Anytime you
see a list of genes, for example, you will be able to right-click and see the
stuff that's available from the greenhouses under standard contract, and the
cost of manufacture and delivery in order to access the tool. Research
materials need to be available under a standard contract, discoverable with a
digital identifier, and fulfillable by a third party. And there needs to be
some sort of acknowledgment, like a citation system.”

At one level, it is ironic that one of the oldest commons-based communities,
academic science, has taken so long to reengineer its digital infrastructure to
take advantage of the Internet and open digital systems. Yet academic
disciplines have always clung tightly to their special ways of knowing and
organizing themselves. The arrival of the Internet has been disruptive to this
tradition by blurring academic boundaries and inviting new types of
cross-boundary research and conversation. If only to improve the conversation,
more scientists are discovering the value of establishing working protocols to
let the diverse tribes of science communicate with one another more easily. Now
that the examples of networked collaboration are proliferating, demonstrating
the enormous power that can be unleashed through sharing and openness, the
momentum for change is only going to intensify. The resulting explosion of
knowledge and innovation should be quite a spectacle.


----------------------------------------
12 OPEN EDUCATION AND LEARNING
------------------------------

/Managing educational resources as a commons can make learning more affordable
and exciting./

In the late 1990s, as Richard Baraniuk taught electrical engineering to
undergraduates at Rice University, the furthest thing from his mind was
revolutionizing learning. He just wanted to make digital signal processing a
more palatable subject for his students. Baraniuk, an affable professor with a
venturesome spirit, was frustrated that half of his undergraduate class would
glaze over when he taught signal processing, perhaps because it involves a lot
of math. But then he explained the social ramifications of signal processing
— for wiretapping, the Internet, the airwaves, radar, and much more. Students
got excited.

“If I wanted to reach a broader class of people, outside of Rice
University,” Baraniuk said, “that would be very difficult. The standard
thing is to write your own book.” But he quickly realized that writing the
176th book ever written on signal processing (he counted) would not be very
efficient or effective. It would take years to write, and then additional years
to traverse the editorial, production, and distribution process. And even if
the book were successful, it would reach only five thousand readers. Finally,
it would be a static artifact, lacking the timeliness and interactivity of
online dialogue. A book, Baraniuk ruefully observed, “redisconnects
things.”[^425]

As chance had it, Baraniuk's research group at Rice was just discovering
open-source software. “It was 1999, and we were moving all of our
workstations to Linux,” he recalled. “It was just so robust and
high-quality, even at that time, and it was being worked on by thousands of
people.” Baraniuk remembers having an epiphany: “What if we took books and
‘chunked them apart,' just like software? And what if we made the IP open so
that the books would be free to re-use and remix in different ways?'”

The vision was exciting, but the tools for realizing it were virtually
nonexistent. The technologies for collaborative authoring and the legal
licenses for sharing, not to mention the financing and outreach for the idea,
would all have to be developed. Fortunately, the Rice University administration
understood the huge potential and helped Baraniuk raise $1 million to put
together a skunk works of colleagues to devise a suitable software architecture
and nonprofit plan. A colleague, Don Johnson, dubbed the enterprise
“Connexions.”

The group made a number of choices that turned out to be remarkably shrewd.
Instead of organizing teaching materials into a “course” or a
“textbook,” for example, the Connexions planners decided to build an open
ecosystem of shared knowledge. Just as the Web is “small pieces loosely
joined,” as David Weinberger's 2003 book put it, so Connexions decided that
the best way to structure its educational content was as discrete modules (such
as “signal processing”) that could be reused in any number of contexts. The
planners also decided to build a system on the open Semantic Web format rather
than a simple interlinking of PDF files. This choice meant that the system
would not be tethered to a proprietary or static way of displaying information,
but could adapt and scale in the networked environment. Modules of content
could be more easily identified and used for many different purposes, in
flexible ways.

By the summer of 2000, the first version of Connexions went live with two Rice
University courses, Fundamentals of Electronic Engineering and Introduction to
Physical Electronics. The goal was to let anyone create educational materials
and put them in the repository. Anyone could copy and customize material on the
site, or mix it with new material in order to create new books and courses.
Materials could even be used to make commercial products such as Web courses,
CD-ROMs, and printed books. By the end of 2000, two hundred course modules were
available on Connexions: a modest but promising start.

It turned out to be an auspicious moment to launch an open platform for
sharing. A wave of Web 2.0 applications and tools was just beginning to appear
on the Internet. Innovators with the savvy to take advantage of open networks,
in the style of free and open software, could amass huge participatory
communities in very short order. For Connexions, the living proof was Kitty
Schmidt-Jones, a private piano teacher from Champaign, Illinois. She discovered
Connexions through her husband and posted a 276-page book on music theory to
the site. “Kitty is not the kind of person who would be a music textbook
author,” said Baraniuk, “but she thought that music education is important,
and said, ‘I can do this, too!' By 2007 /Understanding Basic Music Theory/
had been downloaded more than 7.5 million times from people around the world. A
Connexions staffer attending a conference in Lithuania met an educator from
Mongolia who lit up at the mention of Schmidt-Jones. “We use her work in our
schools!” he said.

Besides curating a collection of educational content, Connexions has developed
a variety of open-source applications to let authors create, remix, share, and
print content easily. The project has also developed systems to let users rate
the quality of materials. Professional societies, editorial boards of journals,
and even informal groups can use a customizable software “lens” to tag the
quality of Connexions modules, which can then be organized and retrieved
according to a given lens.

It was a stroke of good fortune when Baraniuk and his associates learned, in
2002, that Lawrence Lessig was developing a new licensing project called
Creative Commons. As the CC team drafted its licenses, Connexions helped it
understand academic needs and then became one of the very first institutional
adopters of the CC licenses. Connexions decided to require that its
contributors license their works under the least restrictive CC license, CC-BY
(Attribution). This was a simple decision because most textbook authors write
to reach large readerships, not to make money.

The real expansion of Connexions as a major international repository of
teaching materials did not occur until early 2004, when the software platform
had been sufficiently refined. Then, with virtually no publicity, global usage
of the Connexions site took off. It helped that Rice University has never
sought to “own” the project. Although it administers the project, the
university has deliberately encouraged grassroots participation from around the
world and across institutions. Electrical engineering faculty at ten major
universities are cooperating in developing curricula, for example, and diverse
communities of authors are adding to content collections in music, engineering,
physics, chemistry, bioinformatics, nanotechnology, and history. In 2008,
Connexions had 5,801 learning modules woven into 344 collections. More than 1
million people from 194 countries are using the materials, many of which are
written in Chinese, Italian, Spanish, and other languages.

One of Connexion's neatest tricks is offering printed textbooks for a fraction
of the price of conventional textbooks. Because the content is drawn from the
commons, a 300-page hardback engineering textbook that normally sells for $125
can be bought for $25, through a print-on-demand publishing partner, QOOP.com.
Ten percent of the purchase price is earmarked to support Connexions, and
another 10 percent helps disadvantaged students obtain textbooks for free.
Unlike conventional textbooks, which may be a year or two old, Connexions
materials are generally up-to-date.

By providing an alternative to the spiraling costs of academic publishing,
Connexions's publishing model may actually help a number of academic
disciplines pursue their scholarly missions. Over the past decade, some sixty
university presses have closed or downsized for economic reasons. “If you're
in art history, anthropology, or the humanities, you get tenure based on your
monographs published by a university press,” Baraniuk said. “The problem is
that, as university presses shut down, there's nowhere to publish books
anymore.” It is often financially prohibitive to publish art history books,
for example, because such books typically require highquality production and
small press runs. An overly expensive market structure is blocking the flow of
new scholarly publishing.

One solution: a new all-digital hybrid business model for academic publishing.
As the Connexions platform has proved itself, Rice University saw the virtue of
reopening Rice University Press (RUP), which it had closed ten years
earlier.[^426] The new RUP retains the editorial structure, high standards, and
focus on special fields of a conventional academic press, but it now works
within a “branded partition” of Connexions. RUP posts all of its books
online as soon as the manuscripts are finalized, and all books are licensed
under a CC-BY (Attribution) license. The press does not have to pay for any
warehouse or distribution costs because any physical copies of the books are
printed on demand. The sales price includes a mission-support fee for RUP and
the author's royalty. “Because the RUP has eliminated all the back-end
costs,” said Baraniuk, “they figure they can run it from five to ten times
more cheaply than a regular university press.”

The Connexions publishing model has inspired a group of more than twenty
community colleges to develop its own publicdomain textbooks to compete with
expensive commercial textbooks. The Community College Consortium for Open
Educational Resources[^427] —led by Foothill–De Anza Community College
District in Los Altos, California — plans to publish the ten most popular
textbooks used in community colleges, and expand from there. The consortium
will make the books available for free online and sell hardcover versions for
less than thirty dollars. Even if the effort gains only a small slice of the
textbook market, it will help hold down the prices of commercial textbooks and
demonstrate the viability of a new publishing model. More to the point, by
slashing one of the biggest costs facing community college students, the
project will help thousands of lower-income students to stay in college.

MIT'S OPENCOURSEWARE INITIATIVE
...............................

The other pioneering visionary in open education has been MIT. In April 2001,
MIT president Charles Vest shocked the world when he announced that MIT would
begin to put the materials for all two thousand of its courses online for
anyone to use, for free. The new initiative, called OpenCourseWare, would cover
a wide array of instructional materials: lecture notes, class assignments,
problem sets, syllabi, simulations, exams, and video lectures. Putting the
materials online in a searchable, consistent format was expected to take ten
years and cost tens of millions of dollars. (The Hewlett and Mellon foundations
initially stepped forward with two $5.5 million grants, supplemented by $1
million from MIT.)

The project had its origins two years earlier, in 1999, when President Vest
charged a study group with exploring how the university might develop online
educational modules for lifelong learning. The assumption was that it would
sell MIT-branded course materials to the budding “e-learning” market. At
the time, Columbia University was developing Fathom.com, a bold for-profit
co-venture with thirteen other institutions, to sell a wide variety of digital
content. Publishers and universities alike envisioned a lucrative new market
for academic and cultural materials.

OpenCourseWare (OCW) was a startling move because it flatly rejected this
ambition, and appeared to be either a foolish or magnanimous giveaway of
extremely valuable information. Knowledge was assumed to be a species of
property that should be sold for as dear a price as possible; few people at the
time recognized that the Great Value Shift on the Internet was reversing this
logic. The idea that giving information away might actually yield greater
gains— by enhancing an institution's visibility, respect, and influence on a
global scale — was not seen as credible. After all, where's the money?

After studying the matter closely, MIT decided that the online market was not
likely to be a boon, and that posting course materials online would send a
strong message about MIT's values. President Vest conceded that the plan
“looks counter-intuitive in a market-driven world.” But he stressed that
OpenCourseWare would combine “the traditional openness and outreach and
democratizing influence of American education and the ability of the Web to
make vast amounts of information instantly available.”[^428] Professor Steven
Lerman, one of the architects of the OCW plan, told the /New York Times/,
“Selling content for profit, or trying in some ways to commercialize one of
the core intellectual activities of the university, seemed less attractive to
people at a deep level than finding ways to disseminate it as broadly as
possible.”[^429]

MIT also realized the dangers of propertizing college courses and teaching
materials, said computer scientist Hal Abelson, another member of the OCW study
group (and a CC board member). Ownership, he said, “can be profoundly
destructive to the idea of a university community . . . The more people can
stop talking about property and start talking about the nature of a faculty
member's commitment to the institution, the healthier the discussion will be.
It's not really about what you own as a faculty member; it's about what you do
as a faculty member.”[^430]

School officials stressed that using MIT courseware on the Web is not the same
as an MIT education. Indeed, the free materials underscore the fact that what
really distinguishes an MIT education is one's participation in a learning
community. Unlike the Connexions content, MIT's OpenCourseWare is a fairly
static set of course materials; they are not modular or constantly updated. In
addition, they are licensed under a CC BY-NC-SA
(AttributionNonCommercial-ShareAlike.) license. While this prevents businesses
from profiting from MIT course materials, it also prevents other educational
institutions from remixing them into new courses or textbooks.

Despite these limitations, MIT's OCW materials have been profoundly
influential. The course Laboratory in Software Engineering, for example, has
been used by students in Karachi, Pakistan; the island of Mauritius; Vienna,
Austria; and Kansas City, Missouri, among scores of other places around the
world.[^431] Ten of the leading Chinese universities now use hundreds of MIT
courses, leading three noted OER experts, Daniel E. Atkins, John Seely Brown,
and Allen L. Hammond, to conclude that MIT's OCW “has had a major impact on
Chinese education.”[^432] Noting the life-changing impact that OCW has had on
students in rural villages in China and West Africa, Atkins and his co-authors
cite “the power of the OCW as a means for cross-cultural engagement.” Over
the course of four years, from October 2003 through 2007, the OCW site received
nearly 16 million visits; half were newcomers and half were repeat visits.

OCW is becoming a more pervasive international ethic now that more than 120
educational institutions in twenty nations have banded together to form the
OpenCourseWare Consortium. Its goal is to create “a broad and deep body of
open educational content using a shared model.”[^433] Although plenty of
universities are still trying to make money from distance education courses, a
growing number of colleges and universities realize that OCW helps faculty
connect with other interested faculty around the world, build a college's
public recognition and recruitment, and advance knowledge as a public good.

THE RISE OF THE OPEN EDUCATIONAL RESOURCES MOVEMENT
...................................................

While Connexions and MIT's OpenCourseWare have understandably garnered a great
deal of attention, all sorts of fascinating educational projects, big and
small, have popped up on the Internet as Web 2.0 innovations matured. Some of
these projects have become celebrated, such as Wikipedia, the Public Library of
Science, and the Internet Archive. Others, though less celebrated, represent a
dazzling mosaic of educational innovation and new possibilities. In a sense,
the Long Tail has come to education; even the most obscure subjects have a
sustainable niche on the Internet. The groundswell has even produced its own
theorists, conveners, and infrastructure builders. Utah State University hosts
the Center for Open Sustainable Learning, which is a clearinghouse for open
educational tools. Carnegie Mellon has an Open Learning Initiative that designs
educational courses. And so on.

While American institutions and educators have been the first movers in this
field, it has quickly taken on an international grassroots flavor. Thousands of
commoners from around the world have started their own projects. MathWorld has
become the Web's most extensive mathematical resource. Curriki is a wiki that
offers lessons plans and guidance for teachers. The British Library's Online
Gallery features digitized versions of Mozart's musical diary and sketches by
Leonardo da Vinci. U.K. and Australian high school students can now use the
Internet to operate the Faulkes Telescope on the island of Maui, Hawaii.
Students around the world do much the same with Bugscope, a scanning electronic
microscope that can be operated remotely.

It is hard to set a precise date when the practitioners in this area realized
that such wildly diverse projects might constitute a coherent movement with a
shared agenda. But as more grantees began to discover each other, the
movement-in-formation adopted a rather ungainly name to describe itself —
“Open Educational Resources,” or OER.

Most OER projects share a simple and powerful idea — “that the world's
knowledge is a public good and that technology in general and the World Wide
Web in particular provide an extraordinary opportunity for everyone to share,
use and reuse knowledge.” That is how Atkins and his co-authors define OER.
It consists of “teaching, learning and research resources that reside in the
public domain or have been released under an intellectual property license that
permits their free use or re-purposing by others.”[^434]

The heart of the OER movement is, of course, open sharing and collaboration.
OER advocates regard learning as an intrinsically social process, and so they
believe that knowledge and learning tools ought to freely circulate. Inspired
by the GPL and the CC licenses, OER advocates believe they should be free to
copy, modify, and improve their learning tools and pass them forward to others.
There is a presumption that artificial barriers to the free flow of information
should be eliminated, and that teachers and learners should be empowered to
create their own knowledge commons.

The OER movement has a special importance for people who want to learn but
don't have the money or resources, which is to say, people in developing
nations, low-income people, and people with specialized learning needs. For the
4 billion people who live in the developing world, schooling is a privilege,
textbooks are rare, and money is scarce. In many African nations, there would
not be libraries if books were not photocopied. The OER movement aspires to
address these needs. OER projects can provide important benefits in
industrialized nations, too, where subscriptions to research journals are often
prohibitively expensive and many community college students drop out because
textbooks cost more than tuition.

The OER movement is currently in a formative stage, still trying to make sense
of the many players in the movement and understand the complex impediments to
its progress. Some of this could be seen at a “speed geeking” session at
the iCommons Summit in 2007 in Dubrovnik, Croatia. Speed geeking, a puckish
variation on “speed dating,” consists of people listening to a short
presentation, asking questions and then moving on to the next presentation.
After five minutes, a moderator blows a whistle and shouts, “Everyone move
— now!” A speed geek can learn about twelve different projects, and meet
twelve interesting people, in a single hour.

In this case, the speed geeking took place in a sweltering loft space without
air-conditioning, in a medieval building overlooking the Adriatic Sea. At the
first station, a group of participants marveled at a sturdy lime-green laptop
of a kind that was about to be distributed to millions of children around the
world. The One Laptop Per Child project, the brainchild of Nicholas Negroponte
of MIT's Media Lab, is an ambitious nonprofit initiative to build a sturdy,
kidfriendly laptop filled with open-source software and Wi-Fi capabilities for
$100.[^435] (The cost turned out to be $188, but is expected to decline as
production volume grows.) Hundreds of thousands of the so-called XO laptops
have now been distributed to kids in Peru, Uruguay, Mexico and other poor
nations.

/Tweet!/ Next stop: the Free High School Science Textbooks project in South
Africa is developing a free set of science textbooks for students in grades ten
through twelve. The project depends on volunteers to write modules of text
about various physics, chemistry, and mathematical topics. Paid editors then
craft the text into a coherent, high-quality textbook; printing is funded by
donations.

Five minutes later, it was on to Educalibre, a Chilean project that is
installing free software on old computers so that they can be reused in
classrooms. Educalibre is also trying to integrate free software into high
school curricula, especially math. The project seeks to bring open-source
software principles into formal education.

Next, Delia Browne of the National Education Access Licence for Schools, or
NEALS, explained that some ten thousand Australian schools pay millions of
dollars each year to collecting societies in order to reprint materials that
the Australian schools themselves have produced. NEALS wants to eliminate this
expense, as well as millions of dollars in photocopying expenses, by creating a
vast new commons of freely shareable educational materials. Its solution is to
persuade Australian schools, as copyright holders, to adopt a special license
so that participating schools can copy and share each other's materials.

/Tweet!/ At the next station, Ed Bice of San Francisco explained how his
nonprofit group, Meedan.net, is developing a “virtual town square” for
Arabic- and English-speaking Internet users. Using realtime translation and
social networking tools, the site aspires to open up a new global conversation
between Arabs and the rest of the world. It plans to break down cultural
barriers while opening up educational opportunities to Arab populations.

/Tweet! Tweet!/ Neeru Paharia, a former executive director of the Creative
Commons, introduced her fledgling project, AcaWiki. Paharia is concerned that
too many academic articles are locked behind paywalls and are not readily
accessible to everyone. AcaWiki plans to recruit graduate students, academics,
and citizens to write summaries of academic papers. Since many grad students
make abstracts as part of their routine research, it would not be difficult to
pool thousands of summaries into a highly useful, searchable Web collection.

The speed geekers in Dubrovnik were sweaty and overstimulated at the end, but
gratified to learn that there are a great many OER projects under way
throughout the world; they just aren't very well known or coordinated with one
another. Two of the participants — J. Philipp Schmidt of the University of
the Western Cape and Mark Surman of the Shuttleworth Foundation, both of South
Africa — conceded that “there is still a great deal of fuzziness about what
this movement includes,” and that “we don't yet have a good ‘map' of open
education.” But the significance of grassroots initiatives is unmistakable.
“There is a movement afoot here,” they concluded, “and it is movement
with an aim no less than making learning accessible and adaptable for
all.”[^436] “Education,” another participant predicted, “will drive the
future of the Commons movement.”

In a sign that the OER movement is getting serious as a movement, thirty of its
leaders met in Cape Town, South Africa, and in January 2008 issued the Cape
Town Open Education Declaration.[^437] The declaration is a call to make
learning materials more freely available online, and to improve education and
learning by making them more collaborative, flexible, and locally relevant. The
declaration outlines the challenge: “Many educators remain unaware of the
growing pool of open educational resources. Many governments and educational
institutions are either unaware or unconvinced of the benefits of open
education. Differences among licensing schemes for open resources create
confusion and incompatibility. And, of course, the majority of the world does
not have access to the computers and networks that are integral to most current
open education efforts.”

New funding support is materializing from foundations like the Open Society
Institute and the Shuttleworth Foundation, and the Creative Commons has
instigated a new project, ccLearn, headed by Ahrash Bissell, to help coordinate
OER factions and tackle barriers to further progress.

Despite the challenges it faces, the Open Educational Resources movement has a
promising future if only because it has such an appealing ethos and practical
value. It offers to lower the costs and increase the efficiencies of learning.
It helps to generate high-quality materials that address specific learning
needs. Where markets are too expensive or unresponsive, collective provisioning
through the commons can meet needs effectively and in socially convivial ways.

Such intangible satisfactions may be one of the secrets of the OER movement's
success to date. Institutions and individuals take pleasure in contributing to
the public good. There is pleasure in helping people who thirst for an
education, whether in Africa or in a community college, to acquire the
resources they need. For learners, the OER movement offers new, more flexible
styles of learning. Over time, it seems likely that OER projects will transform
the familiar “information transfer” models of formal education into more
informal and participatory learning communities. Passive students will more
easily become passionate, self-directed learners.

Finally, at a time of great geopolitical rivalries and cultural animosities,
the OER movement holds itself forth as an arena of transnational cooperation.
It regards diversity as a strength and social inequity as a challenge to be
squarely met. It is a measure of the movement's idealism that Schmidt and
Surman, the South African OER commoners, compare open education to “a flock
of migratory geese, moving back and forth between North and South. The flock
combines birds from all places. Each goose takes a turn leading the flock,
taking the strain, and then handing over to their peers. The flock is not
confined to just the North, or the South. It flourishes as a global
movement.” 14


----------------------------------------
CONCLUSION: THE DIGITAL REPUBLIC AND THE FUTURE OF DEMOCRATIC CULTURE
---------------------------------------------------------------------

/You never change things by fighting the existing reality. To change something,
build a new model that makes the existing model obsolete. —R. Buckminster
Fuller/

Legend has it that, upon leaving Independence Hall on the final day of the
Constitutional Convention in 1787, Benjamin Franklin was approached by a woman,
who asked, “Well, Doctor, what have we got — a Republic or a Monarchy?”
Franklin famously replied, “A Republic, if you can keep it.” The American
colonies had imagined and engineered a new constitutional order, but its
survival would depend on countless new struggles and innovations. An American
civic culture had to be invented.

The Franklin vignette might well be applied to the digital republic that the
commoners have built. Except that, instead of asking, “Well, Mr. Stallman and
Professor Lessig, what have we got — a free culture or a proprietary
tyranny?” the question might better be posed to the commoners themselves.
Their very existence answers the question, Tyranny or freedom? Free culture
exists. It exists to the extent that people practice its ideals. It is not
pervasive; many people have no idea what it is; it overlaps in fuzzy ways with
the market. But it is flourishing wherever online communities have devised
satisfactory commons structures — through law, software, and social norms —
to capture the value that they create. Or, as the American Framers put it, to
secure the blessings of liberty to ourselves and our posterity.

As the preceding chapters make clear, the commoners are now a respected force
in culture, politics, and economics. Their influence can be felt in varying
degrees in the worlds of music, video, photography, and books; in software, Web
design, and Internet policies; in social networks and peer-to-peer communities;
in business, science, and education; and in scores of countries that have
ported the Creative Commons licenses and developed their own commons-based
projects.

Thanks to the Internet, the commons is now a distinct sector of economic
production and social experience. It is a source of “value creation” that
both complements and competes with markets. It is an arena of social
association, self-governance, and collective provisioning that is responsive
and trustworthy in ways that government often is not. In a sense, the commons
sector is a recapitulation of civil society, as described by Alexis de
Tocqueville, but with different capacities.

Yet even with the great advances that the commoners have made in building their
own shared platforms, tools, and content, the digital republic is not secure.
In most countries, the commoners have less conventional political power than
corporations, which means that the interests of citizens, consumers, and users
are scanted in the policies that govern market competition, intellectual
property, and life on the Internet.[^438] Faced with the Great Value Shift,
mass-media and entertainment corporations are not eager to surrender their
historic market franchises to newcomers without a fight; they are resisting
competition from open business models and the commons.

In the United States, cable broadcast operators and telephone carriers are
threatening the very future of the Internet as a commons infrastructure. They
wish to assert greater control over Web access and traffic, and so are
staunchly resisting “net neutrality” rules that would require them to act
as nondiscriminatory common carriers. They would like to leverage their roles
as oligopolistic gatekeepers to the Internet, and boost their revenues, by
choosing whose Web sites will receive superior transmission and whose
communications may be censored or put in the “slow lane.”

At a further extreme, authoritarian countries such as China, Saudi Arabia,
Egypt, and Singapore have shown that national governments still retain great
powers to censor and control Internet communications.[^439] Even the United
States government is reportedly engaged in extensive surveillance of Internet
traffic, ostensibly for antiterrorism purposes. Meanwhile, many poor nations,
especially in Africa and Asia, are struggling simply to get online and create
their own digital commons.

These battles are all part of a larger struggle over “the institutional
ecology of the digital environment,” in Yochai Benkler's words — a struggle
that is likely to continue for many years. What powers and capabilities will
the commoners and their institutions have relative to business and government,
and how will they be able to protect and enhance the value created within the
commons?

A NEW SPECIES OF CITIZENSHIP
............................

Perhaps the most enduring contribution of the free software, free culture, and
other “open movements” has been their invention of a new species of
citizenship. Despite significant differences of philosophy and implementation,
these commons share some basic values about access, use, and reuse of creative
works and information. No matter their special passions, the commoners tend to
be improvisational, resourceful, self-directed, collaborative, and committed to
democratic ideals. They celebrate a diversity of aesthetics, viewpoints, and
cultures. They are egalitarian in spirit yet respectful of talent and
achievement. There is a strong predilection to share because the accrual of
digital contributions (code, content, metatags) will lead to a greater good for
all and perhaps even democratic change. But there is no hostility to commercial
activity — indeed, there is a lively admiration for entrepreneurialism — so
long as it does not violate basic creative and civic freedoms or core
principles of the Internet (openness, interoperability, sharing). The
disagreements that do exist center on how best to achieve those goals.

As this book has shown, the Internet is enabling a new species of citizenship
in modern life. It is not just a “nice thing.” It is a powerful force for
change. The new technologies have been instrumental in helping the commoners
imagine and build a digital republic of their own. Over the long term, this
citizenship and the culture that it is fostering are likely to be a politically
transformative force. They just might help real-world democracies restore a
measure of their waning legitimacy and competence.[^440]

David R. Johnson, a lawyer and scholar, describes the citizen of the Internet
— the “netizen” — as a significant historical development because he or
she can potentially compete with government as a source of binding rule sets.
In a brilliant essay, “The Life of the Law Online,” Johnson writes that
“we haven't had a real competition for survival among rule sets. The
competition is only between the rule of (our one) law and, presumably, anarchy.
So the tendency of all rule sets to become more complicated over time,
especially when written by people considering only parts of the system in
analytical isolation, has not been checked by evolutionary forces.”[^441]
Government has an unchecked monopoly on lawmaking even though its relationship
to the governed, whose consent is vital, is now greatly attenuated.

One evolutionary “competitor” to government-made law and to markets is the
netizen — or, in my terms, the commoner. For the most part, members of a
commons generate and maintain the rules that govern their collective. By
Johnson's reckoning, the commons must be considered a new social metabolism for
creating law; it is a new type of “legal organism.” It is, in Johnson's
words, “a selfcausing legal order composed of systems that adopt goals that
serve the values of those they regulate, without excessively imposing those
goals on others.”

A commons is a kind of biological entity operating in a complex cultural
ecosystem. It has its own internal systems for managing its affairs,
interacting with its environment, repairing itself, and defining its own
persistent identity. It is a force by which ordinary people can express their
deepest interests and passions, directly and without institutional mediation,
on a global stage. This is an unprecedented capacity in communications,
culture, and, indeed, human history.

To understand why the commoner represents a great leap forward in citizenship,
it helps to consider the history of citizenship in the oldest democracy in the
world, the United States. In his book /The Good Citizen/, sociologist Michael
Schudson describes the evolution of three distinct types of citizenship over
the past three centuries:

  When the nation was founded, being a citizen meant little more than for
  property-owning white males to delegate authority to a local gentleman —
  and accept his complimentary glass of rum on election day. This “politics
  of assent” gave way early in the nineteenth century to a “politics of
  parties.” Parties conducted elaborate campaigns of torchlight processions
  and monster meetings; voting day was filled with banter, banners, fighting
  and drinking. . . . The third model of citizenship, ushered in by Progressive
  reformers, was a “politics of information.” Campaigning became less
  emotional and more educational. Voting was by secret ballot.[^442]

We are heirs to the “politics of information,” a model of citizenship that
presumes, as economics does, that we are rational actors who, if armed with
sufficient quantities of high-quality information, will make educated decisions
and optimize civic outcomes. But as Walter Lippmann noted and Schudson echoes,
“if democracy requires omnicompetence and omniscience from its citizens, it
is a lost cause.”[^443] Life is too busy, fast, and complex. A new type of
citizenship is needed. Schudson offers a fairly weak prescription — the
“monitorial citizen,” a watchdog who vigilantly monitors the behavior of
power.

But it is precisely here that the Internet is offering up a new, more muscular
model of citizenship. I call it /history-making citizenship/. The rise of the
blogosphere over the past ten years is emblematic of this new paradigm of
citizenship. So is citizen-journalism, free software, Wikipedia, the Open
Educational Resources movement, open business models like Jamendo and Flickr,
and the Creative Commons and iCommons communities. In one sense, the
citizenship that these groups practice is “monitorial” in that their
members spend a great deal of time watching and discussing. But
“monitoring” barely begins to describe their activities. The commoners have
the ability — rare in pre-Internet civic life — to publish and incite
others to action, and then organize and follow through, using a growing variety
of powerful tools. With the advent of blogs, meetups, social networking, text
messaging, and many other digital systems, citizens are able to communicate,
coordinate, organize, and take timely action on a wide range of matters,
including matters of public and political concern.

I call the new sorts of citizen behaviors “history-making” because ordinary
people are able to assert moral agency and participate in making change.[^444]
This capacity is not reserved chiefly to large, impersonal institutions such as
corporations, government agencies, and other bureaucracies. It is not a mere
“participatory citizenship” in which people can volunteer their energies to
a larger a more influential leader, political party, or institution in order to
help out. It is a citizenship in which /the commoners themselves/ choose
projects that suit their talents and passions. Dispersed, unorganized groups of
strangers can build their own platforms and social norms for pursuing their
goals; instigate public action that would not otherwise occur (and that may
clash with the practices of existing institutions); and push forward their own
distinctive agenda.

These behaviors exist in some measure in offline realms, of course, but they
are a growing norm in the digital republic. A few examples will suffice to make
the point. The Web helped create and propel a handful of cause-oriented
candidacies — Howard Dean, Ron Paul, Ned Lamont[^*12] — who rapidly raised
enormous sums of money, galvanized large numbers of passionate supporters, and
altered mainstream political discourse. Although none prevailed in their races,
Barack Obama made a quantum leap in online organizing in 2008, raising $50
million in a single month from supporters via the Internet. Obama's candidacy
was buoyed by the rise of the “netroots” — Web activists with a
progressive political agenda— whose size and credibility enable them to sway
votes in Congress, raise significant amounts of campaign funds, and influence
local activism. The stories are now legion about blogs affecting political life
— from the resignation of Senate majority leader Trent Lott after he praised
the racist past of Senator Strom Thurmond at his hundredth birthday party, to
the electoral defeat of Senate candidate George Allen after his uttering of an
ethnic slur, /macaca/, was posted on YouTube.

Citizens are now able to initiate their own policy initiatives without first
persuading the mainstream media or political parties to validate them as
worthy. For example, a handful of citizens troubled by evidence of
“hackable” electronic voting machines exposed the defects of the Diebold
machines and the company's efforts to thwart public scrutiny and reforms.[^445]
(The effort has led to a nationwide citizen effort, www.blackboxvoting.org, to
expose security problems with voting machines and vote counting.) An ad hoc
group of activists, lawyers, academics, and journalists spontaneously formed
around a public wiki dealing with the lethal side effects of a bestselling
antipsychotic drug Zyprexa, and the manufacturer's allegedly illegal conduct in
suppressing evidence of the drug's risks. (Prosecutors later sought a $1
billion fine against Eli Lilly.)[^446]

The Web is giving individuals extra-institutional public platforms for
articulating their own facts and interpretations of culture. It is enabling
them to go far beyond voting and citizen vigilance, to mount citizen-led
interventions in politics and governance. History-making citizens can compete
with the mass media as an arbiter of cultural and political reality. They can
expose the factual errors and lack of independence of /New York Times/
reporters; reveal the editorial biases of the “MSM” — mainstream media
— by offering their own videotape snippets on YouTube; they can even be
pacesetters for the MSM, as the blog Firedoglake did in its relentless
reporting of the “Scooter” Libby trial (Libby, one of Vice President
Cheney's top aides, was convicted of obstruction of justice and perjury in
connection with press leaks about CIA agent Valerie Plame.)
Citizen-journalists, amateur videographers, genuine experts who have created
their own Web platforms, parodists, dirty tricksters, and countless others are
challenging elite control of the news agenda. It is no wonder that commercial
journalism is suffering an identity crisis. Institutional authority is being
trumped by the “social warranting” of online communities, many of which
function as a kind of participatory meritocracy.

History-making citizenship is not without its deficiencies. Rumors,
misinformation, and polarized debate are common in this more open, unmediated
environment. Its crowning virtue is its potential ability to mobilize the
energies and creativity of huge numbers of people. GNU/Linux improbably drew
upon the talents of tens of thousands of programmers; certainly our
contemporary world with its countless problems could use some of this elixir—
platforms that can elicit distributed creativity, specialized talent,
passionate commitment, and social legitimacy. In 2005 Joi Ito, then chairman of
the board of the Creative Commons, wrote: “Traditional forms of
representative democracy can barely manage the scale, complexity and speed of
the issues in the world today. Representatives of sovereign nations negotiating
with each other in global dialog are limited in their ability to solve global
issues. The monolithic media and its increasingly simplistic representation of
the world cannot provide the competition of ideas necessary to reach informed,
viable consensus.”[^447] Ito concluded that a new, not-yetunderstood model of
“emergent democracy” is likely to materialize as the digital revolution
proceeds. A civic order consisting of “intentional blog communities, ad hoc
advocacy coalitions and activist networks” could begin to tackle many urgent
problems.

Clearly, the first imperative in developing a new framework to host
representative democracy is to ensure that the electronic commons be allowed to
exist in the first place. Without net neutrality, citizens could very well be
stifled in their ability to participate on their own terms, in their own
voices. If proprietary policies or technologies are allowed to override citizen
interests (Verizon Wireless in 2007 prevented the transmission of abortion
rights messages on its text-messaging system, for example[^448]), then any hope
for historymaking citizenship will be stillborn.

Beyond such near-term concerns, however, the emerging digital republic is
embroiled in a much larger structural tension with –terrestrial “real
world” governments. The commoner is likely to regard the rules forged in
online commons as more legitimate and appropriate than those mandated by
government. Again, David R. Johnson:

  The goals of a successful legal organism must be agreed upon by those who
  live within it, because a legal system is nothing more than a collective
  conversation about shared values. When it ceases to be that kind of
  internally entailed organism, the law becomes mere power, social “order”
  becomes tyranny, and the only option, over the long term at least, is war.

  Organisms can't be repaired from the outside. But, with reference to
  interactions that take place primarily online, among willing participants who
  seek primarily to regulate their own affairs, that's exactly where existing
  governments are situated — outside the vibrant, self-regulating online
  spaces they seek to regulate. Their efforts to engineer the Internet as if it
  were a mechanism are not only fundamentally illegitimate but doomed by the
  very nature of the thing they seek to regulate. They are trying to create
  social order, of course. But they have not recognized . . . that order in
  complex systems creates itself.[^449]

After all, he or she is likely to have had a more meaningful personal role in
crafting those rules. Now, of course, people live their lives in both online
and terrestrial environments; there is no strict division between the two. That
said, as people's lives become more implicated in Internet spaces, citizens are
likely to prefer the freedoms and affordances of the open-networked environment
to the stunted correlates of offline politics, governance, and law.

Indeed, this may be why so many activists and idealists are attracted to online
venues. There is a richer sense of possibility. Contemporary politics and
government have been captured by big money, professionals, and concentrated
power. By contrast, in the digital republic, the ethic of transparency deals
harshly with institutional manipulations, deceptions, and bad faith. They
literally become part of your “permanent record,” forever available via a
Google search. More fundamentally, the digital republic has a basic respect for
everyone's ability to contribute. It respects the principle of open access for
all. The “consent of the governed” really matters. How sobering it is,
then, to return to the “real world” of the American polity — or most
other national governments — and realize that “money talks and bullshit
walks.” How depressing to realize that the system is highly resistant to
ordinary citizen action, such is the mismatch of resources.

The growing dissonance between the American system of governance, as practiced,
and the more open, meritocratic online world was surely a factor in Lessig's
decision in 2007 to step down as CEO of Creative Commons, a move that
eventually took place in April 2008. Lessig's crushing responsibilities as the
leader of Creative Commons — the international travel, the fund-raising, the
strategic planning, the public events and movement obligations — had surely
taken its toll. Feeling a personal need for new challenges as well as a
responsibility to let new leaders emerge within the CC world, Lessig announced
an ambitious new agenda for himself — tackling the “systemic corruption”
of the democratic process in Congress. He joined with Joe Trippi, the campaign
manager for Howard Dean's 2004 presidential run, to launch a new organization,
Change Congress, which seeks to ban special-interest campaign contributions,
secure public financing for campaigns, and bring greater transparency to
congressional proceedings. In a shuffle of roles, longtime board member James
Boyle — who had been especially active on science and education initiatives
— became the new chairman of Creative Commons. Board member Joi Ito, who had
been chairman for a brief period, became CEO.

If Lessig is going to succeed in using the tools of the digital republic to
reform and rejuvenate the American polity (and perhaps inspire other
governments as well), he will have to confront the rather deeply rooted
premises of the official constitutional order. The fast-paced, commons-based
governance of the digital republic is naturally going to clash with a system of
governance that revolves around bureaucratic hierarchies, a slow-moving system
of law, archaic types of political intermediaries, and electoral principles
designed for eighteenth-century life. Can the two be reconciled? The structural
tensions are likely to be a significant and persistent issue for many, many
years.

A LONG-TERM POWER SHIFT?
........................

It is hard to get a fix on this long-term transformation because the struggles
to actualize an emergent democracy, as envisioned by Ito, are strangely
apolitical and intensely political at the same time. They are apolitical in the
sense that commoners are chiefly focused on the pragmatic technical challenges
of their individual projects; they are not usually involved in official
policymaking in legislatures or before courts and government agencies. Yet free
software and free culture projects are highly political in the sense that
commons projects, taken together over time, represent a profound challenge to
the conventional market order and political culture. For example, Wikitravel,
Jamendo, and open-access journals arguably provide better value than the
commercial alternatives. The success of free software punctures the
foundational assumptions of copyright law, making it easier to challenge new
expansions of copyright law. Participatory commons are diverting viewer
“eyeballs” away from commercial media and its genres of culture, spurring
the growth of new hybrid forms of user-generated content. These kinds of
effects, which advance project by project, month by month, are likely to have a
longterm transformational impact. A new social ethic is taking root.

Free culture, though culturally progressive, is fairly nonjudgmental about
ideological politics. When American conservatives decided they wanted to start
Conservapedia because they found Wikipedia too liberal, Wikipedia founder Jimmy
Wales was happy to bless it: “Free culture knows no bounds . . . We welcome
the reuse of our work to build variants. That's directly in line with our
mission.”[^450] Anthropology professor E. Gabriella Coleman has found a
similar ecumenicism in the free software movement, which is agnostic about
conventional politics but adamant about its own polity of freedom.[^451] Thus,
the FOSS movement has no position with respect to social justice or
globalization issues, but it does demand a strict commitment to the “four
freedoms” of software development. Johan Söderberg makes much the same case
in his book /Hacking Capitalism/.[^452]

As projects like GNU/Linux, Wikipedia, open courseware, open-access journals,
open databases, municipal Wi-Fi, collections of CC-licensed content, and other
commons begin to cross-link and coalesce, the commons paradigm is migrating
from the margins of culture to the center. The viral spiral, after years of
building its infrastructure and social networks, may be approaching a Cambrian
explosion, an evolutionary leap.

History suggests that any new style of politics and polity will arrive through
models developed /from within/ the edifice of existing law, markets, and
culture. A revolutionary coup or showdown with existing institutions will not
be necessary. Superior working models — running code and a healthy commons
— will trump polemics and exhortation.

Ideological activists and political professionals are likely to scoff at this
scenario. After all, they are suspicious of distributed political power, if not
hostile to it. They prefer the levers of consolidated power (laws, court
rulings, police powers) that are within their sphere of influence to the
dispersed, sovereign powers of an online multitude. The latter is highly
resistant to capture and control, and in that sense, profoundly threatening to
the traditional configurations of political power. We have already seen how the
mandarins of journalism, politics, and business are quick to lash out at the
noncredentialed masses who dare to put forward their own interpretations of the
world.

However necessary it is to engage in the official governance of a nation,
corrupted though it may be, the commoners have shown that building their own
functioning commons can be a powerful force for change as well. A commons of
technical standards for the Web — how mundane! — can achieve more than most
antitrust lawsuits. A common pool of information can prevent a company from
reaping easy monopoly rents from the control of a public good. Instead, the
company must “move upstream” to provide more specialized forms of value
(for example, sophisticated graphing of the information or data analysis). A
commons may also be affirmatively helpful to businesses, as Eric von Hippel has
shown, by aggregating a body of aficionados into a social community that can
articulate customer needs and preferences in highly efficient ways: the commons
as a cheap form of R & D and marketing.

In either case, the rise of a commons can be disruptive not just because it
changes how market power is exercised, but because it may disperse power to a
broader community of participants. Recall Johnson's observation that a commons
is a “self-causing legal order” that competes with other legal orders.
Individuals who affiliate with an online community may acquire the ability to
manage their own social relationships and group identity.

This is not just a form of marketplace power, it is a form of /political/
power. In effect, a group may be able to neutralize the power of corporations
to use brands to organize their identities. By developing its own discourse and
identity, an online community can reject their treatment as a demographic
cohort of consumers. They can assert their broader, nonmarket concerns. As a
group of commoners, they are less susceptible to propaganda, ideology, and
commercial journalism as tools for organizing their political allegiances. They
have greater civic sovereignty.

“Free cooperation aims at distributing power,” argues Geert Lovink, a Dutch
media theorist:

  I am not saying that power as such disappears, but there is certainly a
  shift, away from the formal into the informal, from accountable structures
  towards a voluntary and temporal connection. We have to reconcile with the
  fact that these structures undermine the establishment, but not through
  recognizable forms of resistance. The “anti” element often misses. This
  is what makes traditional, unreconstructed lefties so suspicious, as these
  networks just do their thing and do not fit into this or that ideology, be it
  neoliberal or autonomous Marxist. Their vagueness escapes any attempt to
  deconstruct their intention either as proto-capitalist or subversive.[^453]

This can be disorienting. Energies are not focused on resisting an oppressor,
but rather on building innovative, positive alternatives. In Buckminster
Fuller's terms, free culture is mostly about building new models that make the
existing models obsolete. Instead of forging an identity in relation to an
adversary, the movement has built an identity around an affirmative vision and
the challenge of /becoming/. People feel fairly comfortable with a certain
level of ambiguity because the whole environment is so protean, diverse,
evolving, and dynamic.

The GPL and the CC licenses are ingenious hacks because they navigate this
indeterminate ideological space with legally enforceable tools, while looking
to informal social practice and norms to provide stable governance. (“Order
without law,” in law professor Robert Ellickson's formulation.)[^454] The
licenses use the existing legal order to achieve their goals (the sharing of
tools and content), and so the strategies are not seen as politically
provocative. Yet the licenses are nonetheless politically transformative
because they help new communities of practice to organize themselves and do
work that may question core premises of copyright law, conventional economics,
and government policy in general.

The beauty of this “ideological straddle” is that it enables a diverse
array of players into the same tent without inciting sectarian acrimony. (There
is some, of course, but mostly at the margins.) Ecumenical tolerance is the
norm because orthodoxies cannot take root at the periphery where innovation is
constantly being incubated. In any case, there is a widespread realization in
the networked world that shared goals are likely to require variable
implementations, depending on specific needs and contexts.

It may appear that the free software hacker, blogger, tech entrepreneur,
celebrity musician, college professor, and biological researcher have nothing
in common. In truth, each is participating in social practices that are
incrementally and collectively bringing into being a new sort of democratic
polity. French sociologist Bruno Latour calls it the “pixellation of
politics,”[^455] which conjures up a pointillist painting slowly
materializing. The new polity is more open, participatory, dynamically
responsive, and morally respected by “the governed” than the nominal
democracies of nation-states. The bureaucratic state tends to be too large and
remote to be responsive to local circumstances and complex issues; it is
ridiculed and endured. But who dares to aspire to transcend it?

Sooner or later, history-making citizenship is likely to take up such a
challenge. It already has. What is the digital republic, after all, but a
federation of self-organized communities, each seeking to fulfill its members'
dreams by developing its own indigenous set of tools, rules, and ethics? The
power of the commons stems from its role as an organizing template, and not an
ideology. Because it is able to host a diverse and robust ecosystem of talent
without squeezing it into an ideological straitjacket, the commons is flexible
and resilient. It is based on people's sincerest passions, not on remote
institutional imperatives or ideological shibboleths. It therefore has a
foundational support and energy that can outperform “mainstream”
institutions.

This, truly, is the animating force of the viral spiral: the capacity to build
one's own world and participate on a public stage. (Cicero: “Freedom is
participation in power.”) When such energies are let loose in an open,
networked environment, all sorts of new and interesting innovations emerge.
Since an online commons does not have the burden of turning a profit or
supporting huge overhead, it can wait for serendipity, passion, and
idiosyncratic brilliance to surface, and then rely on the Internet to propagate
the fruits virally.

Oddly enough, entrenched commercial interests do not seem to be alarmed by the
disruptive long-term implications of free culture. If the users of CC licenses
genuflect before the altar of copyright law, it would appear, that is
sufficient. Due respect is being shown. Meanwhile, at the level of social
practice, the commoners are gradually building a very different moral economy
that converges, from different paths, on a new type of civic order. In /Code/,
Lessig called it “freedom without anarchy, control without government,
consensus without power.”

It is not entirely clear how the special capacities of bottom-up networks — a
“non-totalizing system of structure that nonetheless acts as a whole,” in
Mark Taylor's words — can be integrated with conventional government and
institutions of power. It is easy to imagine a future confrontation in the
political culture, however, as the citizens of the digital republic confront
the stodgy bureaucratic state (corporate and governmental). The latter will
have the advantages of constitutional authority and state and economic power,
but the former are likely to have the advantages of social legitimacy, superior
on-the-ground information, and creative energy. How the digital republic will
confront the old regime, or supplant it gradually as archaic institutions
collapse over time, is the stuff of future history.

Theory has its limits. The building of the digital republic was in many ways
animated by theory, of course, chiefly the rejection of certain theories of
copyright law and the invention of new narratives about creativity and the
commons. But this project has not been an intellectual, theory-driven
enterprise so much as a vast, collective enterprise of history-making
citizenship. Using the affordances of digital technologies, individuals have
stepped out of their customary or assigned roles to invent entirely new
vehicles for creativity, social life, business, politics, science, and
education. Individuals have come together to make some remarkable new tools and
institutions to serve their needs and preferences.

The story of the commons is, in this sense, the story of a series of
public-spirited individuals who are determined to build new vehicles for
protecting shared wealth and social energies. It is the story of Richard
Stallman fighting the privatization of software and the disenfranchisement of
the hacker community. It is the story of Eric Eldred's determination to go to
jail if necessary to defend his ability to build a Web site for great American
literature. The viral spiral, as I have called it, truly gained momentum when
Lawrence Lessig, as a boundary-breaking law professor, decided to mount a
constitutional test case and then to assemble a larger effort to imagine and
build a new licensing scheme for sharing.

The viral spiral then spins off in dozens of directions as newly empowered
people discover the freedoms and satisfactions that can accrue to them through
this ancient yet now rediscovered and refurbished social vessel. Taken
together, countless commons projects are validating some new models of human
aspiration. Instead of presuming that a society must revolve around competitive
individuals seeking private, material gain (the height of “rationality,”
economists tell us), the commons affirms a broader, more complex, and more
enlightened paradigm of human self-interest. If the Invisible Hand presumes to
align private interest and the public good, the commons has shown that
cooperation and sharing can also serve this goal with great versatility and
sophistication.

Over the long term, the real meaning of the viral spiral may lie in our
discovery that the new platforms that we use to create and organize knowledge,
and relate to one another, is changing how we think and how we conceptualize
our place in the world. John Seely Brown, the former director of Xerox PARC,
has said, “From my perspective, a key property of participatory cultures is
that they help to create both a culture of learning and a culture of doing. The
social basis of doing (e.g. networked communities of interest/ practice) that
you see emerging here actually form reflective practicum(s). This, in turn,
ends up grounding epistemology — ways of knowing — and provides a pathway
back to a kind of pragmatism that Dewey first talked about that is situated
between realism and idealism. This is the pathway to creating a learning
society and a culture that can embrace change by unleashing and affording
productive inquiry in powerful and exciting ways.”[^456]

By empowering us to “step into history” and take greater responsibility for
more aspects of our lives, it is no exaggeration to say that the commons
encourages us to become more integrated human beings. We learn to integrate our
production with our consumption, our learning with our doing, and our ideals
with practical realities. This is surely why the viral spiral has been so
powerfully transformative. It has helped bring our personal needs and interests
into a closer, more congenial alignment with the institutions that serve us. We
may be caught in a messy transition, and there remains much to negotiate and
debate, but we should count our blessings. Few generations are as fortunate in
being able to imagine and build a new commons sector of such liberating
potential.


----------------------------------------

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----------------------------------------

 [1]: Cited by John Seely Brown, former chief scientist, Xerox Palo Alto Research
 Center, at Open Educational Resources conference, Houston, Texas, March 29,
 2007.

 [2]: Keith Aoki, James Boyle, Jennifer Jenkins, /Down by Law!/ at
 <http://www.duke.edu/cspd/comics>.

 [3]: “Social production” and “peer production” are associated with the
 work of Yale law professor Yochai Benkler, especially in his 2006 book, /The
 Wealth of Networks/. “Smart mobs” is a coinage of Howard Rheingold, author
 of a 2003 book by the same name.“Crowdsourcing” is the name of a blog run
 by Jeff Howe and the title of a June 2006 /Wired/ article on the
 topic.“Wisdom of crowds” is a term coined by James Surowiecki and used as
 the title of his 2004 book.

 [4]: <http://www.librivox.org>.

 [5]: <http://faulkes-telescope.com>.

 [6]: <http://bugscope.beckman.uiuc.edu>.

 [7]: <http://www.interplast.org> and
 <http://creativecommons.org/press-releases/2007/04/%E2%80%9Ca-story-of-healing%E2%80%9D-becomes-first-acad>
 emy-award%C2%AE-winning-film-released-under-a-creative-commons-li cense.

 [8]: <http://www.scoopt.com>.

 [9]: <http://www.twotonshoe.com/news.html>.

 [10]: See Doctorow's preface to the second release of the book, February 12,
 2004, Tor Books. See also his blog Craphound.com, September 9, 2006, at
 <http://www.craphound.com/?=p=1681>.

 [11]: James F. Moore, “The Second Superpower Rears its Beautiful Head,” March
 31, 2003, available at
 <http://cyber.law.harvard.edu/people/jmoore/secondsuperpower.html>.

 [12]: Lawrence Lessig, /Code and Other Laws of Cyberspace/ (New York: Basic
 Books, 1999), p. 4.

 [13]: The effect of the elimination of formal registration in copyright law is
 cogently discussed by Lessig in /Free Culture/ (New York: Penguin, 2004), pp.
 170–73, and pp. 248–53.

 [14]: Lawrence Lessig, “The Read-Write Society,” delivered at the Wizards of
 OS4 conference in Berlin, Germany, on September 5, 2006. Available at
 <http://www.wizards-of-os.org/programm/panels/authorship_amp_culture/keynote_the_read_write_society/the_read_write_society.html>.

 [15]: See, e.g., Joanna Demers, /Steal This Music: How Intellectual Property Law
 Affects Musical Creativity/ (Athens: University of Georgia Press, 2006);
 Kelefa Sanneh, “Mixtapes Mix in Marketing,” New York Times, July 20, 2006.

 [16]: Steve Lohr, “IBM to Give Free Access to 500 Patents, /New York Times/,
 July 11, 2005. See also Steven Weber, /The Success of Open Source Software/
 (Cambridge, Mass.: Harvard University Press, 2004), pp. 202–3. See also
 Pamela Samuelson, “IBM's Pragmatic Embrace of Open Source,”
 /Communications of the ACM/ 49, no. 21 (October 2006).

 [17]: Robert D. Hof, “The Power of Us: Mass Collaboration on the Internet Is
 Shaking Up Business,” /BusinessWeek/, June 20, 2005, pp. 73–82.

 [18]: Interview with John Wilbanks, “Science Commons Makes Sharing Easier,”
 /Open Access Now/, December 20, 2004, available at
 <http://www.biomedcentral.com/openaccess/archive/?page=features&issue=23>.

 [19]: See, e.g., Daniel E. Atkins, John Seely Brown, and Allen L. Hammond, “A
 Review of the Open Educational Resources (OER) Movement: Achievements,
 Challenges and New Opportunities,” February 2007, available at
 <http://www.oerderves.org/?p=23>.

 [20]: Interview with Peter Suber, June 28, 2006.

 [21]: Joshua Gray, editor, /Free Software Free Society: Selected Essays of
 Richard M. Stallman/ (Boston: GNU Press, 2002), pp. 190–91.

 [22]: Sam Williams, /Free as in Freedom: Richard Stallman's Crusade for Free
 Software/ (Sebastopol, CA: O'Reilly & Associates 2002), pp. 76–88.

 [23]: Steven Levy, /Hackers: Heroes of the Computer Revolution/ (New York: Delta,
 1993), pp. 425, 427.

 [*1]: Stallman told me he considers it “a common calumny to compare the GNU GPL
 to a virus. That is not only insulting (I have a virus infection in my throat
 right now and it is no fun), it is also inaccurate, because the GPL does not
 spread like a virus. It spreads like a spider plant: if you cut off a piece
 and plant it over here, it grows over here.

 [24]: Williams, /Free as in Freedom/, p. 127.

 [25]: Stallman at MIT forum, “Copyright and Globalization in the Age of
 Computer Networks,” April 19, 2001, available at
 <http://media-in-transition.mit.edu/forums/copyright/transcript.html>.

 [26]: Eben Moglen, “Freeing the Mind: Free Software and the Death of
 Proprietary Culture,” June 29, 2003, available at
 <http://emoglen.law/columbia.edu/publications/maine-speech.html>.

 [*2]: The GPL is not the only software license around, of course, although it
 was, and remains, the most demanding in terms of protecting the commons of
 code. Other popular open-source licenses include the MIT, BSD, and Apache
 licenses, but each of these permit, but do not require, that the source code
 of derivative works also be freely available. The GPL, however, became the
 license used for Linux, a quirk of history that has had far-reaching
 implications.

 [27]: One useful history of Torvalds and Linux is Glyn Moody, /Rebel Code: Inside
 Linux and the Open Source Revolution/ (Cambridge, MA: Perseus, 2001).

 [28]: Eric S. Raymond, “A Brief History of Hackerdom,”
 <http://www.catb.org/~est/writings/cathedral-bazaar/hacker-history/ar01s06.html>.

 [29]: Steven Weber, /The Success of Open Source/ (Cambridge, MA: Harvard
 University Press, 2004), p. 100.

 [30]: Williams, /Free as in Freedom/, p. 100.

 [31]: Torvalds included a brief essay, “Linux kernel management style,” dated
 October 10, 2004, in the files of the Linux source code, with the annotation,
 “Wisdom passed down the ages on clay tablets.” It was included as an
 epilogue in the book /Open Life: The Philosophy of Open Source/, by Henrik
 Ingo, and is available at <http://www.openlife.cc/node/43>.

 [32]: Eric S. Raymond, “The Revenge of the Hackers,” in Chris DiBona, Sam
 Ockman, and Mark Stone, eds., /Open Sources: Voices from the Open Source
 Revolution/ (Sebastopol, CA: O'Reilly & Associates, 1999), p. 212.

 [33]: <http://www.opensource.org>.

 [34]: Elliot Maxwell, citing Wikipedia entry on “Open Source Movement,” in
 “Open Standards Open Source and Open Innovation,” in /Innovations:
 Technology, Governance, Globalization/ 1, no. 3 (Summer 2006), p. 134, note
 56.

 [35]: Richard Stallman has outlined his problems with the “open source”
 definition of software development in an essay, “Why ‘Open Source' Misses
 the Point of Free Software,”
 <http://www.gnu.org/philosophy/open-source-misses-thepoint.html>.

 [36]: Eric Raymond, “The Cathedral and the Bazaar,” available at
 <http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ar01s11.html>.

 [37]: I am grateful to Nicholas Gruen for this insight, taken from his essay
 “Geeks Bearing Gifts: Open Source Software and Its Enemies,” in /Policy/
 21, no. 2 (Winter 2005), pp. 39–48.

 [38]: Andrew Leonard, “How Big Blue Fell for Linux,” Salon.com, September 12,
 2000, available at
 <http://www.salon.com/tech/fsp/2000/09/12/chapter_7_part_one.print.html>. The
 competitive logic behind IBM's moves are explored in Pamela Samuelson,
 “IBM's Pragmatic Embrace of Open Source,” /Communications of the ACM/ 49,
 no. 21 (October 2006), and Robert P. Merges, “A New Dynamism in the Public
 Domain,” /University of Chicago Law Review/ 71, no. 183 (Winter 2004).

 [39]: Steve Hamm, “Linux Inc.,” /BusinessWeek/, January 31, 2005.

 [40]: Cited by Elliot Maxwell in “Open Standards Open Source and Open
 Innovation,” note 80, Berlecon Research, /Free/Libre Open Source Software:
 Survey and Study — Firms' Open Source Activities: Motivations and Policy
 Implications/, FLOSS Final Report, Part 2, at
 www.berlecon.de/studien/downloads/200207FLOSS _Activities.pdf.

 [41]: Rishab Aiyer Ghosh, “Cooking Pot Markets and Balanced Value Flows,” in
 Rishab Aiyer Ghosh, ed., /CODE: Collaborative Ownership and the Digital
 Economy/ (Cambridge, MA: MIT Press, 2005), pp. 153–68.

 [42]: See, e.g., Benkler, “Coase's Penguin, or Linux and the Nature of the
 Firm,” /Yale Law Journal/ 112, no. 369 (2002); Benkler, “ ‘Sharing
 Nicely': On Shareable Goods and the Emergence of Sharing as a Modality of
 Economic Production,” Yale Law Journal 114, no. 273 (2004).

 [43]: Open Source Yoga Unity, <http://www.yogaunity.org>; open-source cola,
 <http://alfredo.octavio.net/soft_drink_formula.pdf>; open-source beer, Vores
 OI (Danish for “Our Beer”), <http://en.wikipedia.org/wiki/Vores_%C3%981>.
 See also <http://freebeer.org/blog> and <http://www.project21.ch/freebeer>.

 [44]: Interview with Richard Stallman, January 21, 2008.

 [45]: Jack Valenti, “A Plea for Keeping Alive the U.S. Film Industry's
 Competitive Energy, ” testimony on behalf of the Motion Picture Association
 of America to extend the term of copyright protection, Senate Judiciary
 Committee, September 20, 1995, at
 <http://instructors.cwrl.utexas.edu/~martin/Valenti.pdf>.

 [*3]: Free software constitutes a “sustainable public domain” because the
 General Public License protects the code and its derivatives from private
 appropriation yet otherwise makes the code free for anyone to use. The public
 domain, by contrast, is vulnerable to private appropriation in practice if a
 company has sufficient market power (e.g., Disney's appropriation of fairy
 tales) or if it uses the public domain to make derivative works and then
 copyrights them (e.g., vendors who mix government data with proprietary
 enhancements).

 [46]: Julie E. Cohen, “Copyright, Commodification and Culture: Locating the
 Public Domain,” in Lucie Guibaut and P. Bernt Hugenholtz eds. /The Future of
 the Public Domain: Identifying the Commons in Information Law/ (The
 Netherlands: Kluwer Law International, 2006), pp. 121–66.

 [47]: Pamela Samuelson, “Challenges in Mapping the Public Domain,” in
 Guibault and Hugenholtz, eds. /The Future of the Public Domain/, pp. 7–26.

 [48]: Jessica Litman, /Digital Copyright/ (Amherst, NY: Prometheus, 2000), p. 62.

 [49]: Tyler Ochoa, “Origins and Meanings of the Public Domain,” /Dayton Law
 Review/ 28, no. 215 (2002).

 [50]: Lawrence Lessig explains the impact of eliminating the copyright
 registration requirement in Lessig, /Free Culture/ (New York: Penguin, 2004),
 pp. 222–23.

 [51]: Interview with Jessica Litman, November 16, 2006.

 [52]: Ibid.

 [53]: James Boyle, “The Second Enclosure Movement and the Construction of the
 Public Domain,” /Law and Contemporary Problems/ 66 (Winter–Spring 2003),
 pp. 33–74, at
 <http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+>
 (WinterSpring+2003).

 [54]: Interview with Peter Jaszi, October 17, 2007.

 [55]: /Sega Enterprises v. Accolade/, 977 F.2d 1510 (9th Cir. 1993).

 [56]: /Harper & Row v. Nation Enterprises/, 471 U.S. 539 (1985).

 [57]: Samuelson, “Digital Information, Digital Networks, and the Public
 Domain,” p. 92.

 [58]: See, e.g., David Bollier, /Brand Name Bullies: The Quest to Own and Control
 Culture/ (New York: Wiley, 2005).

 [59]: Jessica Litman has an excellent historical account of the NII campaign in
 her book /Digital Copyright/ (Amherst, NY: Prometheus, 2000).

 [60]: Litman, /Digital Copyright/, pp. 89–100.

 [61]: Pamela Samuelson, “The Copyright Grab,” /Wired/, January 1996.

 [62]: Ibid.

 [63]: Litman, /Digital Copyright/, pp. 144–45.

 [64]: See Wikipedia entry for the Copyright Term Extension Act, at
 <http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act>. See
 also /Eldred v. Ashcroft/, 537 U.S. 186 (2003), F. 3d 849 (2001).

 [65]: Interview with Fred von Lohmann, March 20, 2006.

 [66]: 22. John Perry Barlow, “The Economy of Ideas,” /Wired/, March 1994, at
 <http://www.wired.com/wired/archive/2.03/economy.ideas.html>.

 [67]: Ibid.

 [68]: David Lange, “Recognizing the Public Domain,” /Law and Contemporary
 Problems/ 44 (Autumn 1981).

 [69]: M. William Krasilovsky, “Observations on the Public Domain,” /Bulletin
 of the Copyright Society/ 14, no. 205 (1967).

 [70]: Edward Samuels, “The Public Domain in Copyright Law,” /Journal of the
 Copyright Society/ 41, no. 137 (1993), p. 138.

 [71]: Lange, “Recognizing the Public Domain,” p. 162.

 [72]: Jessica Litman, “The Public Domain,” /Emory Law Journal/ 39, no. 965
 (Fall 1990).

 [73]: Litman, “The Public Domain,” p. 1012.

 [74]: Martha Woodmansee and Peter Jaszi, eds., /The Construction of Authorship:
 Textual Appropriation in Law and Literature/ (Durham, NC: Duke University
 Press, 1994).

 [75]: Henry Miller writes: “We carry within us so many entities, so many
 voices, that rare indeed is the man who can say he speaks with his own voice.
 In the final analysis, is that iota of uniqueness which we boast of as
 ‘ours' really ours? Whatever real or unique contribution we make stems from
 the same inscrutable source whence everything derives. We contribute nothing
 but our understanding, which is a way of saying — our acceptance.” Miller,
 /The Books in My Life/ (New York: New Directions), p. 198.

 [76]: Rufus Pollock, “The Value of the Public Domain,” report for Institute
 for Public Policy Research, London, July 2006, at
 <http://www.rufuspollock.org/economics/papers/value_of_public_domain.ippr.pdf>.

 [77]: See James Boyle, /Shamans, Software, and Spleens: Law and the Construction
 of the Information Society/ (Cambridge, MA: Harvard University Press, 1995),
 p. 192.

 [78]: James Boyle, “A Theory of Law and Information: Copyright, Spleens,
 Blackmail and Insider Trading,” /California Law Review/ 80, no. 1413 (1992),
 at <http://www.law.duke.edu/boylesite/law&info.htm>.

 [79]: These examples can be found in Bollier, /Brand Name Bullies/.

 [80]: Interview with Yochai Benkler, February 7, 2006.

 [81]: James Boyle, “A Politics of Intellectual Property: Environmentalism for
 the Net,” /Duke Law Journal/ 47, no. 1 (October 1997), pp. 87–116, at
 <http://www.law.duke.edu/boylesite/Intprop.htm>.

 [82]: Interview with Eric Eldred, August 1, 2006; Daren Fonda, “Copyright
 Crusader,” /Boston Globe Magazine/, August 29, 1999, available at
 <http://www.boston.com/globe/magazine/8-29/featurestory1.shtml>; and Eric
 Eldred, “Battle of the Books: The Ebook vs. the Antibook,” November 15,
 1998, at <http://www.eldritchpress.org/battle.html>.

 [83]: Interview with Eric Eldred, August 1, 2006.

 [*4]: The Internet protocols that enable different computers and networks to
 connect despite their differences is TCP/IP, which stands for
 TransmissionControl Protocol/Internet Protocol. These protocols enabled the
 commons known as the Internet to emerge and function, and in turn to host
 countless other commons “on top” of it.

 [84]: Ibid.

 [85]: Richard Poynder interview with Lawrence Lessig, “The Basement Interviews:
 Free Culture,” April 7, 2006, p. 26, available at
 <http://poynder.blogspot.com/2006/03/basement-interviews.html>. See also
 Steven Levy, “Lawrence Lessig's Supreme Showdown,” /Wired/, October 2002,
 pp. 140–45, 154–56, available at
 <http://www.wired.com/wired/archive/10.10/lessig.html>. Project Gutenberg is
 at <http://wwwgutenberg.org>.

 [86]: Wikipedia entry, at <http://en.wikipedia.org/wiki/Lessig>; Levy,
 “Lawrence Lessig's Supreme Showdown.”

 [87]: Poynder interview with Lessig, April 7, 2006.

 [88]: Levy, “Lawrence Lessig's Supreme Showdown.”

 [89]: Lawrence Lessig, “Fidelity in Translation,” /Texas Law Review/ 71, no.
 1165 (May 1993).

 [*5]: The Erie ruling held that federal common law, previously recognized by the
 U.S. Supreme Court in 1842, was unconstitutional.

 [90]: Lawrence Lessig, “Erie-Effects of Volume 110: An Essay on Context in
 Interpretive Theory,” /Harvard Law Review/ 110, no. 1785 (1997).

 [91]: Ibid., p. 1809.

 [92]: Julian Dibbell, “A Rape in Cyberspace: How an Evil Clown, a Haitian
 Trickster Spirit, Two Wizards, and a Cast of Dozens Turns a Database into a
 Society,” /Village Voice/, December 21, 1993, pp. 36–42, reprinted in Mark
 Stefik, /Internet Dreams: Archetypes, Myths, and Metaphors/ (Cambridge, MA:
 MIT Press, 1997), pp. 293–315, Dibbell quote at p. 296.

 [93]: Interview with Lawrence Lessig, March 20, 2006.

 [94]: Ibid.

 [95]: Lessig, /Code and Other Laws of Cyberspace/ (New York: Basic Books, 1999).

 [96]: Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler,
 “Cyberspace and the American Dream: A Magna Carta for the Knowledge Age,”
 Progress and Freedom Foundation, August 1994, available at
 <http://www.pff.org/issues-pubs/futureinsights/fil.2magnacarta.html>.

 [97]: David Hudson, interview with Louis Rossetto, “What Kind of
 Libertarian,” /Rewired/ (Macmillan, 1997), p. 255.

 [98]: Steven Levy, “The Great Liberator,” /Wired/, October 2002, and Poynder
 interview with Lessig, April 7, 2006.

 [99]: David Streitfeld, “The Cultural Anarchist vs. the Hollywood Police
 State,” /Los Angeles Times Magazine/, September 22, 2002, p. 32.

 [100]: Lawrence Lessig, “Commons Law,” June 24, 1999, posted on
 www.intellectu alcapital.com/issues/issue251/item5505.asp, and Open Law
 archive at <http://cyber.law.harvard.edu/openlaw>.

 [101]: /Eldred v. Reno/ (later, Eldred v. Ashcroft), 537 U.S. 186 (2003),
 affirming 239 F. 3d 372.

 [102]: Lessig, “How I Lost the Big One,” /Legal Affairs/, March/April 2004,
 available at
 <http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp>.

 [103]: Lessig interview with Richard Poynder, April 7, 2006, p. 25.

 [104]: “Lawrence Lessig Answers Your Questions,” Slashdot.org, December 21,
 2001, Question 1, “The question of harm,” posted by “caduguid,” with
 Lessig response, available at
 <http://interviews.slashdot.org/article.pl?sid=01/12/21/155221>.

 [105]: Lessig response to question 11, Slashdot.org, “Will the extension of
 copyright continue?” posed by “Artifice_Eternity,” available at
 <http://interviews.slashdot.org/article.pl?sid=01/12/21/155221>.

 [106]: See
 <http://www.supremecourtus.gov/oral_arguments/argument_transcripts/01-618.pdf>.
 See also Lessig, “How I Lost the Big One,” and Linda Greenhouse,
 “Justices Hear Arguments in Challenge to Copyrights,” /New York Times/,
 October 10, 2002. A number of Supreme Court opinions in the /Eldred/ case can
 be found at the Openlaw archive at
 <http://cyber.law.harvard.edu/openlaw/eldredvreno>. The /Loyola Los Angeles
 Law Review/ held a symposium on /Eldred v. Ashcroft/, available at
 <http://llr.lls.edu/volumes/v36-issue1>.

 [107]: 537 U.S. 186 (1993). See also “Court Majority Says It Won't Second-Guess
 Congress,” /New York Times/, January 16, 2007, p. A22.

 [108]: Stephen Breyer, “The Uneasy Case for Copyright,” /Harvard Law Review/
 84, no. 281 (1970).

 [109]: Siva Vaidhyanathan, “After the Copyright Smackdown: What Next?”
 /Salon/, January 17, 2003, at
 <http://www.salon.com/tech/feature/2003/01/17/copyright.print.html>.

 [110]: Interview with Poynder, April 7, 2006, p. 25.

 [111]: Lessig, “How I Lost the Big One.” See also Lessig, /Free Culture/ (New
 York: Penguin, 2004), pp. 228–48.

 [112]: Lessig response to Question 11, “Cyberspace Amendment,” posed by
 “kzinti,” in Slashdot, available at
 <http://interviews.slashdot.org/article.pl?sid=01/12/21/155221>.

 [113]: Interview with Poynder, April 7, 2006, pp. 26–27.

 [114]: Garr Reynolds's blog on professional presentation design, “The ‘Lessig
 Method' of Presentation,” October 5, 2005, available at
 <http://presentationzen.blogs.com/presentationzen/2005/10/the_lessig_meth.html>.

 [115]: Interview with Aaron Swartz, October 10, 2006.

 [116]: Amy Harmon, “Challenge in Copyright Case May Be Just a Beginning,”
 /New York Times/, October 14, 2002.

 [117]: Interview with Eric Eldred, August 1, 2006.

 [118]: Interview with Lawrence Lessig, March 20, 2006.

 [119]: Ibid.

 [120]: Robert S. Boynton, “Righting Copyright: Fair Use and Digital
 Environmentalism,” /Bookforum/, February/March 2005, available at
 <http://www.robertboynton.com/articleDisplay.php?article_id=1>.

 [121]: See, e.g., D. T. Max, “The Injustice Collector,” /New Yorker/, June
 19, 2006, pp. 34ff.

 [122]: The Copyright's Commons Web site is now defunct but can be found at the
 Internet Archive's Wayback Machine, at <http://cyber.law.harvard.edu/cc>.

 [123]: Interview with Wendy Seltzer, September 28, 2006.

 [124]: Ross Hanig, “Luring Lessig to Stanford Law School,” /Recorder/,
 October 17, 2001, at <http://www.law.com>.

 [125]: Wikipedia entry, at <http://en.wikipedia.org/wiki/Napster>.

 [126]: Interview with Jonathan Zittrain, September 28, 2006.

 [127]: Lawrence Lessig, “Proposal for the Intellectual Property Conservancy,”
 e-mail to ipcommons group, November 12, 2000.

 [128]: Chris Babbitt and Claire Prestel, “Memorandum to Michael Carroll, Wilmer
 Cutler Pickering, ‘IP Conservancy,' ” October 24, 2000.

 [129]: E-mail from Richard Stallman to Lessig, September 11, 2000. See also
 <http://www.gnu.org/philosophy/words-to-avoid.html>. Stallman suggested
 calling the project the “Copyright and Patent Conservancy.”

 [130]: E-mail from Hal Abelson to Lessig, September 12, 2000.

 [131]: E-mail from Lawrence Lessig to ipcommons group, September 8, 2000.

 [132]: This case, /Stewart v. Abend/, 100 S. Ct. 1750 (1990), required the
 copyright owners of Alfred Hitchcock's movie /Rear Window/ to pay damages to
 the author of a book upon which the film was based. Saltzman was concerned
 that the conservancy would be liable for any illicit derivative works. See
 Daniel A. Saunders, “Copyright Law's Broken Rear Window: An Appraisal of
 Damage and Estimate of Repair,” /California Law Review/ 80, no. 1 (January
 1992), pp. 179–245.

 [133]: E-mail to ipcommons group, September 18, 2000.

 [134]: E-mail from Lawrence Lessig to ipcommons group, November 12, 2000.

 [135]: E-mail from Lawrence Lessig to ipcommons group, October 11, 2000, which
 contained e-mail from Laurie Racine to Lessig, October 25, 2000.

 [136]: E-mail from Lawrence Lessig to ipcommons group, November 12, 2000.

 [137]: <http://web.archive.org/web/*/http://Openculture.org>.

 [138]: Contained in e-mail from Christina Ritchie to ipcommons group, December
 15, 2000.

 [139]: Michael Carroll, “Potential Copyright Liability and DMCA Safe Harbor
 Relief for Creative Commons,” appendix to “Briefing Book for Creative
 Commons Inaugural Meeting,” May 7, 2001.

 [140]: E-mail from Eric Saltzman to ipcommons group, January 19, 2001.

 [141]: E-mail from Paul Uhlir and Jerry Reichman, January 30, 2001.

 [142]: E-mails from ipcommons listserv to ipcommons group, January 11, 12, 13,
 16, 2001.

 [143]: Dotan Oliar, “Memo on Creative Commons — Towards Formulating a
 Business Plan,” March 19, 2001.

 [144]: Interview with Chris Babbitt, September 14, 2006.

 [145]: The mock-up can be found at
 <http://cyber.law.harvard.edu/creativecommons/site.htm>.

 [146]: “Briefing Book for Creative Commons Inaugural Meeting,” May 7,2001,
 p.10.

 [147]: Interview with Chris Babbitt, September 14, 2006.

 [148]: Interview with Jonathan Zittrain, September 28, 2006.

 [149]: Oren Bracha and Dotan Oliar, “Memo: May 7th Consensus Regarding the
 Creative Commons Project,” August 20, 2001, p. 1.

 [150]: Interview with Chris Babbitt, September 14, 2006.

 [151]: Laura Bjorkland, “Regarding Creative Commons: Report from the Creative
 Community,” in “Briefing Book for Creative Commons Inaugural Meeting,”
 May 7, 2001, pp. 16–19.

 [152]: Oren Bracha and Dotan Oliar, “Memo: May 7th Consensus Regarding the
 Creative Commons Project,” August 20, 2001, p. 3, note 9.

 [153]: <http://politicalhumor.about.com/od/funnypictures/ig/100-Funny-Pictures/Confusing-Florida-Ballot.htm>.

 [154]: E-mail from Michael Carroll to Molly Van Houweling and Larry Lessig,
 October 15, 2001.

 [155]: Interview with Eric Saltzman, April 11, 2006.

 [156]: “Briefing Book,” p. 12.

 [157]: Ibid.

 [*6]: RDF, or Resource Description Framework, is a way to make a statement about
 content in a digital artifact. XML, or Extensible Markup Language, is a way to
 write a specialized document format to send across the Web, in which certain
 content can be marked up, or emphasized, so that other computers can
 “read” it.

 [158]: For background, see “The Semantic Web: An Introduction,” at
 <http://infomesh.net/2001/swintro>; Aaron Swartz and James Hendler, “The
 Semantic Web: A Network of Content for the Digital City,” at
 <http://blogspace.com/rdf/SwartzHendler>; and John Markoff, “Entrepreneurs
 See a Web Guided by Common Sense,” /New York Times/, November 12, 2006.

 [159]: Interview with Lisa Rein, December 20, 2006.

 [160]: Interview with Aaron Swartz, October 10, 2006.

 [161]: Interview with Hal Abelson, April 14, 2007.

 [162]: E-mail from Lawrence Lessig to Hal Abelson, April 22, 2002.

 [163]: Interview with Glenn Otis Brown, June 9, 2006.

 [164]: Oren Bracha and Dotan Oliar, “Memo: Presentation of Two Possible
 Creative Commons Layer 1 Architectures,” October 1, 2001.

 [165]: Interview with Molly Van Houweling, March 21, 2006.

 [166]: Interview with John Brockland, January 5, 2007.

 [167]: Interview with Molly Van Houweling, March 21, 2006.

 [168]: Interview with Glenn Otis Brown, June 9, 2007.

 [169]: The lawyers also wrestled with a host of imponderables that had no obvious
 answers, such as: What if people started spoofing the licenses by using them
 in inappropriate ways? Should the Creative Commons establish a central
 registry for CC-licensed works as a way to ensure the credibility of the
 project? (After long debate, the idea was ultimately rejected.) Would the
 Creative Commons be held liable for contributory negligence if someone used a
 CC license on a copyrighted song? (The CC took its chances.) Would the
 Creative Commons lose its trademark if it allowed anyone to use its
 trademarked logo? (Several lawyers warned that CC licensing of its trademark
 could not be properly policed.) Glenn Otis Brown worried that the board might
 be sued for facilitating the unauthorized practice of law. “I don't know how
 long I spent calling up different insurance brokers trying to get a quote,”
 he recalled. “People had no idea what I was talking about. We ended up going
 all the way to Lloyd's of London to ask them,” said Brown, laughing. “They
 wrote back and said, ‘You can't insure that.' ”

 [170]: A FAQ at the Creative Commons Web site answers the most frequent user
 questions about the licenses. It is available at
 <http://wiki.creativecommons.org/>.

 [171]: <http://creativecommons.org/press-releases/entry/3476>.

 [172]: See <http://mirrors.creativecommons.org/cc-barlow-valenti.mov>.

 [173]: Interview with Glenn Otis Brown, August 10, 2006.

 [174]: Lawrence Lessig, Creative Commons press release, December 19, 2002; “CC
 in Review: Lawrence Lessig on How It All Began” [weekly e-mail series],
 October 12, 2005.

 [175]: Interview with Ryan Junell, September 23, 2006.

 [176]: Matthew Haughey, “Blogging in the Public Domain,” Creative Commons
 blog post, February 5, 2003, at
 <http://creativecommons.org/weblog/entry/3601>.

 [177]: Susan Butler, “Movement to Share Creative Works Raises Concerns in Music
 Circles,” /Billboard/, May 28, 2005.

 [178]: John C. Dvorak, “Creative Commons Humbug: This Scheme Doesn't Seem to
 Benefit the Public,” PC Magazine, July 28, 2005.

 [179]: Researchers at the Economic Observatory of the University of Openness,
 “Commercial Commons,” on the online journal /Metamute/, at
 <http://www.metamute.org/?q=en/Commercial-Commons>.

 [180]: Nielsen/Net Ratings estimated 585 million Internet users in 2002; the
 International Telecommunications Union estimated 665 million. See
 <http://www2.sims.berkeley.edu/research/proiects/how-much-info-2003/internet.htm>.

 [181]: Yochai Benkler, /The Wealth of Networks: How Social Production Transforms
 Markets and Freedom/ (New Haven, CT: Yale University Press, 2006), p. 60.

 [182]: Benkler at the iCommons Summit, Dubrovnik, Croatia, June 15, 2007.

 [183]: An excellent overview of these new spaces is Don Tapscott and Anthony D.
 Williams, /Wikinomics: How Mass Collaboration Changes Everything/ (New York:
 Portfolio, 2006).

 [184]: Robert D. Hof, “The Power of Us: Mass Collaboration on the Internet Is
 Shaking Up Business,” /BusinessWeek/, June 20, 2005, pp. 73–82.

 [185]: “The Fortune of the Commons,” Economist, May 8, 2003; Henry
 Chesbrough, /Open Business Models: How to Thrive in the New Innovation
 Landscape/ (Cambridge, MA: Harvard Business School Press, 2006).

 [186]: I am indebted to my friend John Clippinger for this insight, as explained
 in his book /A Crowd of One: The Future of Individual Identity/ (New York:
 Public Affairs, 2007), chapter 7, “Transforming Trust: Social Commerce in
 Renaissance Florence,” pp. 97–114.

 [187]: Dan Hunter and F. Gregory Lastowka, “Amateur-to-Amateur,” /William and
 Mary Law Review/ 46, no. 951 (December 2004).

 [188]: Tim O'Reilly, “What Is Web 2.0: Design Patterns and Business Models for
 the Next Generation of Software,” O'Reilly Media Web site, September 30,
 2005, at
 <http://www.oreilly.com/pub/a/oreilly/tim/news/2005/09/30/what-isweb-20.html>.

 [189]: Wikipedia statistics from <http://en.wikipedia.org/wiki/Wikipedia:About>.

 [190]: David Bollier, “When Push Comes to Pull: The New Economy and Culture of
 Networking Technology” (Washington, DC: Aspen Institute, 2006), at
 <http://www.aspeninstitute.org/atf/cf/%7BDEB6F227-659B-4EC8-8F84-8DF23CA704F5%7D/2005InfoTechText.pdf>.

 [191]: Chris Anderson, “The Long Tail,” /Wired/, October 2004, at
 <http://www.wired.com/wired/archive/12.10/tail.html>.

 [192]: <http://www.openprosthetics.org>.

 [193]: Rachel Rosmarin, “Why MySpace Blinked,” /Forbes/, April 24, 2007.

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

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

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

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

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

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

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

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

 [202]: Ibid., p. 45.

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

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

 [205]: Matt Haughey, “From LA's Awesometown to New York City's SNL,” /Wired
 News/, October 1, 2005.

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

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

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

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

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

 [211]: Donald Clarke, /The Rise and Fall of Popular Music/, chapter 11.

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

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

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

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

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

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

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

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

 [220]: <http://news.bbc.co.uk/l/hi/entertainment/3352667.stm>.

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

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

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

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

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

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

 [*7]: A “Sampling Plus” license was also issued to allow noncommercial
 copying and distribution of an entire work, which means it could be
 distributed via file-sharing networks. Finally, a “NonCommercial Sampling
 Plus” license was devised to let people sample and transform pieces of a
 work, and copy and distribute the entire work, so long as it was for
 noncommercial purposes.

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

 [228]: Interview with Neeru Paharia, April 13, 2007.

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

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

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

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

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

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

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

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

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

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

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

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

 [241]: Interview with Lawrence Lessig, September 14, 2006.

 [242]: Interview with Glenn Otis Brown, June 9, 2006.

 [243]: Ibid.

 [244]: Lawrence Lessig, /Free Culture/ (New York: Penguin, 2004), pp. 275, 287.

 [245]: CC license statistics, on CC wiki page, at
 <http://wiki.creativecommons.org/License_statistics>.

 [246]: Interview with Mike Linksvayer, February 7, 2007.

 [247]: Glenn Otis Brown, “Announcing (and explaining) our new 2.0 licenses,”
 CC blog, May 25, 2004, at <http://creativecommons.org/weblog/entry/4216>.

 [248]: 7. Mia Garlick, “Version 3.0 Launched,” CC blog,
 <http://creativecommons.org/weblog/entry/7249>.

 [249]: Interview with Glenn Otis Brown, June 9, 2006.

 [250]: Interview with James Boyle, August 15, 2006.

 [251]: The procedures for porting a CC license to another jurisdiction are
 outlined in a document, “Welcome to Creative Commons International,”
 undated, at <http://wiki.creativecommons.org/Worldwide_Overview>.

 [252]: Interview with Jonathan Zittrain, September 28, 2006.

 [253]: The most famous court case involving the CC licenses is /A. Curry v.
 Audax/Weekend/, in which Adam Curry sued the publishers of a Dutch tabloid
 magazine and two senior editors for using four photos of his family on his
 Flickr account that had been licensed under a BY-NC-SA license. See
 <http://creativecommons.org/weblog/entry/5944> and
 <http://creativecommons.org/weblog/entry/5823>. A District Court of Amsterdam
 upheld Curry's usage of the CC licenses in a March 9, 2006, decision; see
 <http://mirrors.creativecommons.org/judgements/Curry-Audax-English.pdf>. There
 have been two Spanish cases involving CC licenses. In both cases, a collecting
 society, the Sociedad General de Autores y Editores (SGAE), sued cafés for
 playing “free music” licensed under CC licenses; SGAE claimed that it was
 owed royalties for the public performance of music because artists cannot
 legally apply a CC license to their work (or even release it online) without
 the consent of their collecting society. In both instances, the cases turned
 on evidentiary issues, not on the enforceability of CC licenses. See
 <http://creativecommons.org/weblog/entry/5830> and
 <http://creativecommons.org/weblog/entry/7228>.

 [254]: Interview with Yuko Noguchi, September 12, 2007.

 [255]: Wikipedia entry, “Tropicalismo,” at
 <http://en.wikipedia.org/wiki/Tropicalismo>.

 [256]: For a history of Gil, see his personal Web site at
 <http://www.gilbertogil.com.br/index.php?language=en>; the Wikipedia entry on
 him at <http://en.wikipedia.org/wiki/Gilberto_Gil>; and Larry Rohter,
 “Gilberto Gil Hears the Future, Some Rights Reserved,” /New York Times/,
 March 11, 2007.

 [257]: Julian Dibbell, “We Pledge Allegiance to the Penguin,” /Wired/,
 November 2004, at <http://www.wired.com/wired/archive/12.11/linux_pr.html>.

 [258]: Ibid.

 [259]: E-mail from Hermano Vianna, January 8, 2007.

 [260]: Creative Commons press release, “Brazilian Government First to Adopt New
 ‘CC-GPL,' ” December 2, 2003.

 [261]: A ten-minute video of the CC Brazil opening can be seen at
 <http://support.creativecommons.org/videos#brasil>.

 [262]: Interview with Glenn Otis Brown, August 10, 2006.

 [263]: Film about CC Brazil launch, at
 <http://support.creativecommons.org/videos#brasil>.

 [264]: Interview with Ronaldo Lemos da Silva, September 15, 2006.

 [265]: The /tecnobrega/ scene is described by Ronaldo Lemos in “From Legal
 Commons to Social Commons: Developing Countries and the Cultural Industry in
 the 21st Century,”
 <http://icommons.org/banco/from-legal-commons-tosocial-commons-brazil-and-the-cultural-industry-1>.

 [266]: Ibid.

 [267]: <http://www.ccmixter.co.za>.

 [268]: <http://www.scielo.br>.

 [269]: <http://www.portacurtas.comb.br>.

 [270]: <http://www.overmundo.com.br>

 [271]: <http://tramavirtual.uol.com.br>.

 [272]: Ronaldo Lemos, “From Legal Commons to Social Commons: Developing
 Countries and the Cultural Industry in the 21st Century,”
 <http://icommons.org/banco/from-legal-commons-to-social-commons-brazil-and-the-culturalindustry-1>.

 [273]: Gil remarks at New York University, September 19, 2004, at
 <http://www.nyu.edu/fas/NewsEvents/Events/Minister_Gil_speech.pdf>.

 [274]: Ibid.

 [275]: Ibid.

 [276]: Interview with Tomislav Medak, CC Croatia, June 25, 2006.

 [277]: Ibid.

 [278]: Ibid.

 [279]: Interview with Andrés Guadamuz of CC Scotland, December 19, 2006.

 [280]: See <http://news.bbc.co.uk/2/hi/help/4527506.stm>, and interview with
 Paula Le Dieu, joint director of the BBC Creative Archive project, May 28,
 2004, at
 <http://digital-lifestyles.info/2004/05/28/exclusive-providing-the-fuel-fora-creative-nation-an-interview-with-paula-le-dieu-joint-director-on-the-bbccreative-archive>.

 [281]: Intrallect Ltd and AHRC Research Centre for Studies in Intellectual
 Property and Technology Law, University of Edinburgh, “The Common
 Information Environment and Creative Commons,” October 10, 2005, at
 <http://www.intrallect.com/index.php/intrallect/content/download/632/2631/file/CIE>
 _CC_Final_Report.pdf.

 [282]: iCommons annual report, 2007, <http://www.icommons.org/annual07>.

 [283]: Michael Geist, “Push for Open Access to Research, BBC News, February 28,
 2007, at <http://news.bbc.co.uk/go/pr/fr/~/2/hi/technology/6404429>.

 [284]: Creative Commons blog, Alex Roberts, March 8, 2006, at
 <http://creativecommons.org/text/sip>.

 [285]: Interview with Juan Carlos de Martin, CC Italy, July 17, 2007.

 [286]: iCommons '06 conference booklet, p. 77.

 [287]: Giorgos Cheliotis, Warren Chik, Ankit Guglani, and Girl Kumar Tayi,
 “Taking Stock of the Creative Commons Experiment: Monitoring the Use of
 Creative Commons Licenses and Evaluating Its Implications for the Future of
 Creative Commons and for Copyright Law,” paper presented at 35th Research
 Conference on Communication, Information and Internet Policy (TPRC), September
 28–30, 2007. Paper dated August 15, 2007.

 [288]: Cheliotis, “Taking Stock,” pp. 20–22.

 [289]: The French book is Danièle Bourcier and Mélanie Dulong de Rosnay, eds.,
 /International Commons at the Digital Age/ (Paris: Romillat, 2004), at
 <http://fr.creativecommons.org/icommons_book.htm>. The Finnish book is Herkko
 Hietanen et al., /Community Created Content: Law, Business and Policy/ (Turre
 Publishing, 2007), at
 <http://www.turre.com/images/stories/books/webkirja_koko_optimoitu2.pdf>. The
 Australian book is Brian Fitzgerald, /Open Content Licensing: Cultivating the
 Creative Commons/ (Sydney: Sydney University Press, 2007).

 [290]: Creative Commons Netherlands press release, “Buma/Stemra and Creative
 Commons Netherlands Launch a Pilot,” August 23, 2007; e-mail by Paul Keller,
 CC Netherlands, to CC International listserv, August 23, 2007.

 [291]: Interview with James P. Love, June 13, 2006.

 [292]: Creative Commons blog, Kathryn Frankel, “Commoners: Architecture for
 Humanity,” June 30, 2006, at
 <http://creativecommons.org/education/architecture>.

 [293]: See Lessig on Creative Commons blog, December 7, 2005, at
 <http://creativecommons.org/weblog/archive/2005/12/page/3>.

 [294]: Interview with James Love, June 13, 2006.

 [295]: Creative Commons “retired licenses page,” at
 <http://creativecommons.org/retiredlicenses>.

 [296]: Lawrence Lessig, “Retiring standalone DevNations and One Sampling
 License,” message to CC International listserv, June 4, 2007.

 [297]: Interview with Lawrence Lessig, March 20, 2006.

 [298]: <http://icommons.org/isummit05>.

 [299]: <http://icommons.org/isummit06>.

 [300]: iCommons Summit '06 program.

 [301]: David Berry, “The iCommons Lab Report,” sent to UK FreeCulture
 listserv, November 9, 2006.

 [302]: Becky Hogge, “What Moves a Movement,” OpenDemocracy.org, June 27,
 2006, at www.opendemocracy.net/media-commons/movement_3686.jsp.

 [*8]: The eighteen licenses once offered include the core six licenses; a
 nonattribution version of five of those six licenses (now retired); three
 sampling licenses (one of which has been retired); the Developing Nations
 license (now retired); and a public domain dedication (which is otherwise not
 possible under copyright statutes). There was also a “Music Sharing
 license,” which was just another name for the Attribution-NonCommercial-No
 Derivatives license, and a “Founders' Copyright,” which is not a license
 but a contract between an author and Creative Commons to place a particular
 work in the public domain after fourteen years (or twenty-eight years, if the
 author opts for a fourteen-year extension)

 [303]: Ibid.

 [304]: Interview with Lawrence Lessig, October 23, 2007.

 [305]: Ibid.

 [306]: Niva Elkin-Koren, “Exploring Creative Commons: A Skeptical View of a
 Worthy Pursuit,” chapter XIV in Lucie Guibault and P. Bernt Hugenholtz,
 editors, /The Future of the Public Domain: Identifying the Commons in
 Information Law/ (Alphen aan den Rijn, Netherlands: Kluwer Law International
 BV, 2006).

 [307]: Interview with Yochai Benkler, February 7, 2006.

 [308]: David Berry and Giles Moss, “On the ‘Creative Commons': A Critique of
 the Commons without Commonality,” Free Software Magazine, July 15, 2005, at
 <http://www.freesoftwaremagazine.com/articles/commons_without_commonality>.

 [309]: Based on Yahoo queries, June 13, 2006, at
 <http://wiki.creativecommons.org/License_Statistics>.

 [310]: Eric Muller, “The Case for Free Use: Reasons Not to Use a Creative
 Commons–NC License,” at <http://freedomdefined.org/Licenses/NC>.

 [311]: Niva Elkin-Koren, “Exploring Creative Commons: A Skeptical View of a
 Worthy Pursuit,” chapter 14 in Lucie Guibault and P. Bernt Hugenholtz,
 editors, /The Future of the Public Domain: Identifying the Commons in
 Information Law/ (The Netherlands: Kluwer Law International BV, 2006), p. 326.

 [312]: Interview with Niva Elkin-Koren, January 30, 2007.

 [313]: Interview with Lawrence Lessig, October 23, 2007.

 [314]: Richard Stallman, “Fireworks in Montreal,” at
 <http://www.fsf.org/blogs/rms/entry-20050920.html>.

 [315]: Benjamin Mako Hill, “Towards a Standard of Freedom: Creative Commons and
 the Free Software Movement,” /Advogato/, July 29, 2005, at
 <http://www.advogato.org/article/851.html>.

 [316]: Interview with Benjamin Mako Hill, June 1, 2007.

 [317]: Ibid. See also Hill, “Freedom's Standard Advanced?” /Mute/, November
 23, 2005, at <http://www.metamute.org/en/node/5597>.

 [318]: Joichi Ito, message on iCommons listserv, June 1, 2007.

 [319]: Interview with Niva Elkin-Koren, January 30, 2007.

 [320]: Wikipedia entry on GNU Free Documentation license, at
 <http://en.wikipedia.org/wiki/GNU_Free_Documentation_License>.

 [321]: Michael Fitzgerald, “Copyleft Hits a Snag,” /Technology Review/,
 December 21, 2005.

 [322]: Lessig post to CC International listserv, June 4, 2007. More about the
 CC's retired licenses can be seen at
 <http://creativecommons.org/retiredlicenses>.

 [323]: Interview with Lawrence Lessig, October 23, 2007.

 [324]: David Berry and Giles Moss, “On the ‘Creative Commons': A Critique of
 the Commons Without Commonality,” /Free Software Magazine/, July 15, 2005,
 at <http://www.freesoftwaremagagine.com/articles/commons_without_commonality>

 [325]: Anna Nimus, “Copyright, Copyleft and the Creative Anti-Commons,” at
 <http://subsol.c3.hu/subsol_2/contributors0/nimustext.html>.

 [326]: Anupam Chander and Madhavi Sunder, “The Romance of the Public Domain,”
 California Law Review 92, no. 1131 (2004), p. 1341.

 [327]: Ibid., p. 1343.

 [328]: “A Letter to the Commons, from the participants of the ‘Shades of the
 Commons Workshop,' ” in /In the Shade of the Commons:Towards a Culture of
 Open Networks/ (Amsterdam, Netherlands: Waag Society, 2006), at
 <http://www3.fis.utoronto.ca/research/iprp/cracin/publications/pdfs/final/werbin_InThe>
 Shade.pdf.

 [329]: Center for Social Media, at <http://www.centerforsocialmedia.org/fairuse>.
 See also Pat Aufderheide and Peter Jaszi, “Fair Use and Best Practices:
 Surprising Success,” /Intellectual Property Today/, October 2007, at
 <http://www.iptoday.com/articles/2007-10-aufderheide.asp>; and Peter Jaszi,
 “Copyright, Fair Use and Motion Pictures,” /Utah Law Review/ 3, no. 715
 (2007), and which also appeared in R. Kolker, ed., /Oxford Handbook of Film
 and Media Studies/ (2007), at
 <http://www.centerforsocialmedia.org/files/pdf/fairuse_motionpictures.pdf>.

 [330]: Aufderheide and Jaszi, /Intellectual Property Today/, October 2007, at
 <http://www.iptoday.com/articles/2007-10-aufderheide.asp>.

 [331]: Interview with Lawrence Lessig, October 23, 2007.

 [332]: Interview with Yochai Benkler, February 7, 2006.

 [333]: Cory Doctorow, iCommons listserv [thread, “Andrew Orlowski Attacks
 Lessig], June 1, 2007.

 [334]: John Buckman presentation at iCommons Summit, Dubrovnik, Croatia, June 15,
 2007.

 [335]: John Buckman entry in Wikipedia, at
 <http://en.wikipedia.org/wiki/John_Buckman>.

 [336]: John Buckman at Magnatune home page, at
 <http://www.magnatune.com/info/why>.

 [337]: John Buckman, interview with Matthew Magee of Out-Law.com, radio podcast,
 September 13, 2007, at <http://www.out-law.com/page-8468>.

 [338]: John Buckman at iCommons, June 15, 2007. For an extensive profile of
 Buckman and Magnatune, see
 <http://www.openrightsgroup.org/creativebusiness/index.php/John_Buckman:_Magnatune>.

 [339]: John Buckman, interview with Matthew Magee, September 13, 2007.

 [340]: See,e.g., Walter S.Mossberg, “Free My Phone,” /Wall Street Journal/,
 October 22, 2007, p. R1.

 [341]: Steve Lohr, “Free the Avatars,” New York Times, October 15, 2007.

 [342]: See Elliot E. Maxwell, “Open Standards, Open Source, and Open
 Innovation: Harnessing the Benefits of Openness,” /Innovations:Technology,
 Governance, Globalization/ 1, no. 3 (Summer 2006), at
 <http://www.emaxwell.net>.

 [343]: Eric Raymond, “The Cathedral and the Bazaar,” May 1997, at
 <http://www.catb.org/~esr/writings/cathedral-bazaar>. The essay has been
 translated into nineteen languages to date.

 [344]: Yochai Benkler, “Coase's Penguin, or, Linux and the Nature of the
 Firm,” /Yale Law Journal/ 112, no. 369 (2002), at
 <http://www.benkler.org/CoasesPenguin.html>.

 [345]: Richard Pérez-Peña, “Times to Stop Charging for Parts of Its Web
 Site,” /New York Times/, September 18, 2007.

 [346]: Frank Ahrens, “Web Sites, Tear Down That Wall,” /Washington Post/,
 November 16, 2007, p. D1. See also Farhad Manjoo, “The Wall Street Journal's
 Website Is Already (Secretly) Free,” /Salon/, March 21, 2008, at
 <http://machinist.salon.com/blog/2008/03/21/wsj/index.html>.

 [347]: David P. Reed, “The Sneaky Exponential — Beyond Metcalfe's Law to the
 Power of Community Building,” at
 <http://www.reed.com/Papers/GFN/reedslaw.html>.

 [348]: See, e.g., Paula Lehman, “MySpace Plays Chicken with Users,”
 BusinessWeek Online, April 12, 2007.

 [349]: Henry Chesbrough, /Open Business Models: How to Thrive in the New
 Innovation Landscape/ (Cambridge, MA: Harvard Business School Press, 2006).

 [350]: <http://www.openbusiness.org>.

 [351]: From blog of Professor Karim Lakhani, Harvard Business School, April 27,
 2007.

 [352]: Joe Wilcox and Stephen Shankland, “Why Microsoft is wary of open
 source,” CNET, June 18, 2001; and Lea, Graham, “MS' Ballmer: Linux is
 communism,” /Register/ (U.K.), July 31, 2000.

 [353]: Yochai Benkler, /The Wealth of Networks/ (Yale University Press, 2006),
 Figure 2.1 on p. 47.

 [354]: “Open Source: Now It's an Ecosystem,” BusinessWeek Online, October 3,
 2005.

 [355]: Microsoft's Shared Source Licenses, at
 <http://www.microsoft.com/resources/sharedsource/licensingbasics/sharedsourcelicenses.mspx>;
 see also Lessig blog, “Microsoft Releases Under ShareAlike,” June 24,
 2005, at <http://lessig.org/blog/2005/06/microsoft_releases_under_share.html>.

 [356]: Vauhini Vara, “Facebook Gets Help from Its Friends,” Wall Street
 Journal, June 22, 2007. See also Riva Richmond, “Why So Many Want to Create
 Facebook Applications,” /Wall Street Journal/, September 4, 2007.

 [357]: Joshua Davis, “The Secret World of Lonelygirl,” Wired, December 2006,
 at <http://www.wired.com/wired/archive/14.12/lonelygirl.html>.

 [358]: Elizabeth Holmes, “Famous, Online,” /Wall Street Journal/, August 8,
 2006.

 [359]: Revver entry at Wikipedia, at <http://en.wikipedia.org/wiki/Revver>.

 [360]: Interview with Steven Starr, “Is Web TV a Threat to TV?” Wall Street
 Journal, August 7, 2007, at
 <http://online.wsj.com/article/SB118530221391976425.html>.

 [361]: Lessig blog post, “The Ethics of Web 2.0,” October 20, 2006, at
 <http://www.lessig.org/blog/archives/003570.shtml>.

 [362]: Nicholas G. Carr, “Web 2.0lier than Thou,” Rough Type blog, October
 23, 2006. Joichi Ito has a thoughtful response in his blog, “Is YouTube Web
 2.0?” October 22, 2006, at
 <http://joi.ito.com/archives/2006/10/22/is_youtube_web_20.html>; and Lessig
 responded to Carr in his blog, at
 <http://lessig.org/blog/2006/10/stuck_in_the_20th_century_or_t.html>. The
 “communism discourse” persists, and not just among critics of free
 culture. Lawrence Liang of CC India used this epigraph in a book on
 open-content licenses: “There is a specter haunting cultural production, the
 specter of open content licensing.” which he attributes to “Karl Marx
 (reworked for the digital era).” From Liang, /Guide to Open Content
 Licenses/ (Rotterdam, Netherlands: Piet Zwart Institute, Institute for
 Postgraduate Studies and Research, Willem de Kooning Academy Hogeschool,
 2004).

 [363]: Interview with Ronaldo Lemos, September 15, 2006.

 [364]: Ronaldo Lemos, “From Legal Commons to Social Commons: Developing
 Countries and the Cultural Industry in the 21st Century,” 2006, at
 <http://www.icommons.org/resources/from-legal-commons-to-social-commons-brazil-and-the-cultural-industry-1>.
 See Paula Martini post on iCommons blog, “Over the Top: The New (and Bigger)
 Cultural Industry in Brazil,” September 28, 2007, at
 <http://www.icommons.org/articles/over-the-top-thenew-and-bigger-cultural-industry-in-brazil>.

 [365]: Ibid.

 [366]: Interview with Ronaldo Lemos, November 6, 2006.

 [*9]: Folksonomies, a cross of /taxonomy/ and /folk/, are essentially
 user-generated tags attached to each song and album, which enables categories
 of music to emerge from the “bottom up,” as fans regard the music, rather
 than through top-down marketing categories.

 [*10]: An API is an “application programming interface,” a set of protocols
 that enable a software application to operate on a computer operating system,
 library, or service. Many companies use proprietary APIs to retain control
 over who may develop applications that will interoperate with their software.
 Other companies that wish to encourage development of compatible
 applications— and thus promote a software ecosystem entwined with the
 operating system or service — use open APIs.

 [367]: Sylvain Zimmer of Jamendo, presentation at iCommons Summit, Dubrovnik,
 Croatia, June 15, 2007.

 [368]: Don Tapscott and Anthony D. Williams, /Wikinomics: How Mass Collaboration
 Changes Everything/ (New York Portfolio, 2006), chapter 5, “The
 Prosumers.”

 [369]: David Bollier, /The Rise of Collective Intelligence: Decentralized
 Co-creation of Value as a New Paradigm of Commerce and Culture/ (Washington,
 DC: Aspen Institute Communications and Society Program, 2008).

 [370]: Elliot Maxwell, “Open Standards, Open Source, and Open Innovation:
 Harnessing the Benefits of Openness,” /Innovations:Technology, Governance,
 Globalization/ 1, no. 3 (Summer 2006), at <http://www.emaxwell.net>, p. 150.

 [371]: Elliot E. Maxwell drew my attention to these examples in his excellent
 essay “Open Standards, Open Source, and Open Innovation.”

 [372]: Wikipedia entry, IMDB, at
 <http://en.wikipedia.org/wiki/Internet_Movie_Database>.

 [373]: Wikipedia entry, CDDB, at <http://en.wikipedia.org/wiki/CDDB>.

 [374]: Eric von Hippel, /Democratizing Innovation/ (Cambridge, MA: MIT Press,
 2005), available at <http://mitpress.mit.edu/democratizing_innovation_pdf>.

 [375]: Ibid., p. 1

 [376]: Tapscott and Williams, /Wikinomics/, pp. 130–31.

 [377]: Brendan I. Koerner, “Geeks in Toyland,” /Wired/, February 2006.

 [378]: Karim R. Lakhani and Jill A. Panetta, “The Principles of Distributed
 Innovation,” Research Publication No. 2007-7, Berkman Center for Internet &
 Society, Harvard Law School, October 2007, at
 <http://papers.ssrn.com/abstract_id=1021034>. See also Darren Dahl, “Nice
 Threads,” /Southwest Airlines Spirit/, December 2006.

 [379]: Evan Prodromou presentation, “Commercialization of Wikis: Open Community
 that Pays the Bills,” South by Southwest Interactive conference, March 10,
 2007.

 [380]: William J. Bulkeley, “Got a Better Letter Opener?” /Wall Street
 Journal/, July 13, 2006.

 [381]: <http://www.sellaband.com>.

 [382]: William Booth, “His Fans Greenlight the Project,” /Washington Post/,
 August 20, 2006.

 [383]: Derek Lowe, “Neat! Wish It Were True!” /In the Pipeline/ [blog],
 November 29, 2007, at <http://pipeline.corante.com>. See also, Donna
 Wentworth, “Why We Need to Figure Out What We Already Know,” Science
 Commons blog, January 4, 2008, at
 <http://sciencecommons.org/weblog/archives/2008/01/04/why-we-need-to-figure-out-what-we-already-know>.

 [384]: James Boyle, “The Irony of a Web Without Science,” /Financial Times/,
 September 4, 2007, at
 <http://www.ft.com/cms/s/2/39166e30-5a7f-11dc-9bcd0000779fd2ac.html>.

 [385]: John Wilbanks, director of the Science Commons, introduced me to this
 term.

 [386]: See, e.g., Jennifer Washburn, /University Inc.: The Corporate Corruption
 of Higher Education/ (New York: Basic Books, 2005); Derek Bok, /Universities
 in the Marketplace: The Commercialization of Higher Education/ (Princeton, NJ:
 Princeton University Press, 2003); Sheldon Krimsky, /Science in the Private
 Interest: Has the Lure of Profits Corrupted Biomedical Research/ (New York:
 Rowman & Littlefield, 2003); and Corynne McSherry, /Who Owns Academic Work?
 Battling for Control of Intellectual Property/ (Cambridge, MA: Harvard
 University Press, 2001).

 [387]: John Seely Brown and Paul Duguid, /The Social Life of Information/
 (Cambridge, MA: Harvard Business School Pulishing, 2000). See also, e.g., Jane
 E. Fountain, “Social Capital: Its Relationship to Innovation in Science and
 Technology,” /Science and Public Policy/ 25, no. 2 (April 1998), pp.
 103–15.

 [388]: Committee for Economic Development, /Harnessing Openness to Transform
 American Health Care/ (Washington, DC: CED, 2008).

 [389]: See, e.g., Rockefeller Foundation, “2005 Bellagio Meeting on Open Source
 Models of Collaborative Innovation in the Life Sciences” [report], Bellagio,
 Italy, September 2005. See also Janet Elizabeth Hope, “Open Source
 Biotechnology,” Ph.D. diss., Australian National University, December 2004.

 [390]: Interview with Richard Jefferson, September 7, 2006. See also
 <http://www.cambia.org>.

 [391]: Robert Merton, “Science and Democratic Social Structure,” in /Social
 Theory and Social Structure/, 3d ed. (New York: Free Press, 1968), pp.
 604–15.

 [392]: Richard R. Nelson, “The Market Economy and the Scientific Commons,”
 /Research Policy/ 33, no. 3 (April 2004), pp. 455–71. See also Karim R.
 Lakhani et al., “The Value of Openness in Scientific Problem Solving,”
 Harvard Business School Working Paper 07-050, January 2007, at
 <http://www.hbs.edu/research/pdf/07-050.pdf>.

 [393]: Robert Merges, “Property Rights Theory and the Commons: The Case of
 Scientific Research,” /Social Philosophy and Policy/ 13, no. 2 (Summer
 1996), pp. 145–61.

 [394]: John Willinsky, “The Unacknowledged Convergence of Open Source, Open
 Access and Open Science,” /First Monday/ 10, no. 8 (August 2005), at
 <http://firstmonday.org/issues/issue10_8/willinsky/index.html>.

 [395]: Interview with James Boyle, August 15, 2006.

 [396]: Jean-Claude Guédon, “In Oldenburg's Long Shadow: Librarians, Research
 Scientists, Publishers and the Control of Scientific Publishing,” at
 <http://www.arl.org/resources/pubs/mmproceedings/138guedon.shtml>.

 [*11]: “Open access” can be a confusing term. In the context of a rivalrous,
 depletable natural resource like timber or grazing land, an open-access regime
 means that anyone can use and appropriate the resource, resulting in its
 overexploitation and ruin. An /open-access regime/ is not the same as a
 /commons/, however, because a commons does have rules, boundaries, sanctions
 against free riders, etc., to govern the resource. However, in the context of
 an infinite, nonrivalrous resource like information, which can be copied and
 distributed at virtually no cost, an open-access regime does not result in
 overexploitation of the resource. For this reason, open access in an Internet
 context is often conflated with the commons — even though “open access,”
 in a natural resource context, tends to produce very different outcomes.

 [397]: <http://www.earlham.edu/~peters/fos/fosblog.html>.

 [398]: Willinsky, “The Unacknowledged Convergence.”

 [399]: Interview with Peter Suber, June 28, 2006.

 [400]: Association of Research Libraries, /ARL Statistics/ 2005–06, at
 <http://www.arl.org/stats/annualsurveys/ar/stats/arlstats06.shtml>.

 [401]: Peter Suber, “Creating an Intellectual Commons through Open Access,”
 in Charlotte Hess and Elinor Ostrom, eds., /Understanding Knowledge as a
 Commons: From Theory to Practice/ (Cambridge, MA: MIT Press, 2007), p. 175.

 [402]: Association of Research Libraries, “Tempe Principles for Emerging
 Systems of Scholarly Publishing,” May 10, 2000, at
 <http://www.arl.org/resources/pubs/tempe/index.shtml>.

 [403]: <http://www.earlham.edu/~peters/fos/timeline.htm>.

 [404]: The Budapest Open Access Initiative can be found at
 <http://www.soros.org/openaccess>.

 [405]: <http://www.earlham.edu/~peters/fos/overview.htm>.

 [406]: Peter Suber has an excellent account of the final OA legislation in /SPARC
 Open Access Newsletter/, no. 17, January 2, 2008, at
 <http://www.earlham.edu/~peters/fos/newsletter/01-02-08.htm>.

 [407]: Science Commons brochure [undated].

 [408]: Science Commons, “Scholar's Copyright Project — Background
 Briefing,” at
 <http://sciencecommons.org/literature/scholars_copyright.html>.

 [409]: Interview with John Wilbanks, November 19, 2007.

 [410]: Patricia Cohen, “At Harvard, a Proposal to Publish Free on the Web,”
 /New York Times/, February 12, 2008. See also Peter Suber's coverage of the
 decision in Open Access News, at
 <http://www.earlham.edu/~peters/fos/2008/02/moreon-imminent-oa-mandate-at-harvard.html>,
 and subsequent days.

 [411]: Donna Wentworth blog post, “Ensuring the freedom to integrate — why we
 need an ‘open data' protocol,” Science Commons blog, December 20, 2007, at
 <http://sciencecommons.org/weblog/archives/2007/12/20/ensuring-thefreedom-to-integrate>.

 [412]: National Research Council, /A Question of Balance: Private Rights and the
 Public Interest in Scientific and Technical Databases/ (Washington, DC:
 National Academy Press, 1999), p. 14.

 [413]: John Sulston and Georgina Ferry, /The Common Threat: A Story of Science,
 Politics, Ethics and the Human Genome/ (Washington, DC: Joseph Henry Press,
 2002), pp. 212–13.

 [414]: <http://www.hapmap.org>.

 [415]: Andrés Guadamuz González, “Open Science: Open Source Licenses in
 Scientific Research,” /North Carolina Journal of Law & Technology/ 7, no. 2
 (Spring 2006), pp. 349–50.

 [416]: <http://www.hapmap.org/guidelines_hapmap_data.html.en>.

 [417]: Interview with John Wilbanks, November 19, 2007.

 [418]: Ibid.

 [419]: Moody and Singh quotations from Donna Wentworth, Science Commons blog
 post, December 20, 2007.

 [420]: Brian Athey, University of Michigan, presentation at Commons of Science
 conference, National Academy of Science, Washington, DC, October 3, 2006.

 [421]: Stevan Harnad, “Maximizing Research Impact Through Institutional and
 National Open-Access Self-Archiving Mandates,” /Electronics & Computer
 Science E-Prints Repository/, May 2006, available at
 <http://eprints.ecs.soron.ac.uk/12093/02/harnad-crisrey.pdf>.

 [422]: Interview with Michael Carroll, August 7, 2006.

 [423]: Thinh Nguyen, “Science Commons: Material Transfer Agreement Project,”
 /Innovations/, Summer 2007, pp. 137–43, at
 <http://www.mitpressjournals.org/doi/pdf/10.1162/itgg.2007.2.3.137>.

 [424]: Ibid.

 [425]: Interview with Richard Baraniuk, January 21, 2008.

 [426]: Rice University Press homepage, at <http://www.ricepress.rice.edu>.

 [427]: <http://cccoer.pbwiki.com>.

 [428]: MIT press release, “MIT to make nearly all course materials available
 free on the World Wide Web,” April 4, 2001.

 [429]: Carey Goldberg, “Auditing Classes at M.I.T., on the Web and Free,”
 /New York Times/, April 4, 2001, p. 1.

 [430]: Interview with Hal Abelson, “OpenCourseWare and the Mission of MIT,”
 /Academe/, September/October 2002, pp. 25–26.

 [431]: David Diamond, “MIT Everyware,” /Wired/, September 2003.

 [432]: Daniel E. Atkins, John Seely Brown, and Allen L. Hammond, “A Review of
 the Open Educational Resources (OER) Movement: Achievements, Challenges and
 New Opportunities,” February 2007, at
 <http://www.oerderves.org/wp-content/uploads/2007/03/a-review-of-the-open-educational-re>
 sources-oer-movement_final.pdf, p. 23.

 [433]: OpenCourseWare Consortium, at <http://www.ocwconsortium.org>.

 [434]: Ibid.

 [435]: See, e.g., John Markoff, “For $150, Third-World Laptop Stirs a Big
 Debate,” /New York Times/, November 30, 2006.

 [436]: J. Philipp Schmidt and Mark Surman, “Open Sourcing Education: Learning
 and Wisdom from the iSummit 2007,” September 2, 2007, at
 <http://icommons.org/download_banco/open-sourcing-education-learning-and-wisdom-from-isummit-2007>.

 [437]: <http://www.capetowndeclaration.org>. Schmidt and Surman, “Open Sourcing
 Education.”

 [438]: For a nice overview of these policy contests, see Yochai Benkler, /The
 Wealth of Networks: How Social Production Transforms Markets and Freedom/ (New
 Haven, CT: Yale University Press, 2006), chapter 11, “The Battle Over the
 Institutional Ecology of the Digital Environment,” pp. 383–459.

 [439]: Shanthi Kalathil and Taylor C. Boas, /Open Networks, Closed Regimes: The
 Impact of the Internet on Authoritarian Rule/ (Washington, DC: Carnegie
 Endowment for International Peace, 2003).

 [440]: David Bollier, /The Rise of Netpolitik: How the Internet Is Changing
 International Politics and Diplomacy/ (Washington, DC: Aspen Institute
 Communications and Society Program, 2003).

 [441]: David R. Johnson, “The Life of the Law Online,” /First Monday/ 11, no.
 2 (February 2006), at
 <http://firstmonday.org/issues/issue11_2/johnson/index.html>.

 [442]: Michael Schudson, /The Good Citizen: A History of American Civic Life/
 (New York: Free Press, 1998), dust jacket.

 [443]: Ibid., p. 310.

 [444]: I am inspired in this choice of terms by Charles Spinosa, Frnando Flores,
 and Hubert L. Dreyfus in their book, /Disclosing New Worlds: Entrepreneurship,
 Democratic Action, and the Cultivation of Solidarity/ (Cambridge, MA: MIT
 Press, 1997).

 [*12]: Lamont was an insurgent candidate for U.S. Senate from Connecticut
 challenging Senator Joseph Lieberman in a campaign that helped culturally
 validate opposition to the U.S. war in Iraq.

 [445]: See, e.g.,Yochai Benkler, /The Wealth of Networks/, pp. 225–32.

 [446]: Jonah Bossewitch, “The Zyprexa Kills Campaign: Peer Production and the
 Frontiers of Radical Pedagogy,” /Re-public/, at
 <http://www.re-public.gr/en/?p=144>.

 [447]: Joichi Ito, “Emergent Democracy,” chapter 1 in John Lebkowsky and
 Mitch Ratcliffe, eds., /Extreme Democracy/ (Durham, NC: Lulu.com, 2005), at
 <http://extremedemocracy.com/chapters/Chapter%20One-Ito.pdf>.

 [448]: Adam Liptak, “Verizon Reverses Itself on Abortion Messages,” /New York
 Times/, September 27, 2007, at
 <http://www.nytimes.com/2007/09/27/business/27cnd-verizon.html>.

 [449]: Johnson, “The Life of the Law Online.”

 [450]: Robert Mackey, “Conservapedia: The Word Says it All,” /New York
 Times/, March 8, 2007, at
 <http://thelede.blogs.nytimes.com/2007/03/08/conservapedia-the-word-says-it-all/?scp=1&sq=wales+conservapedia>.

 [451]: E. Gabriella Coleman, “The Political Agnosticism of Free and Open Source
 Software and the Inadvertent Politics of Contrast,” /Anthropology Quarterly/
 77, no. 3 (Summer 2004), pp. 507–19. See also her Ph.D. dissertation, “The
 Social Construction of Freedom in Free and Open Source Software: Hackers,
 Ethics and the Liberal Tradition,” abstract at
 <http://healthhacker.org/biella/coleman-abstract.pdf>.

 [452]: Johan Söderberg, /Hacking Capitalism: The Free and Open Source Software
 Movement/ (New York: Routledge, 2007).

 [453]: Geert Lovink, “Theses on Wiki Politics,” an exchange with Pavlos
 Hatzopoulos, /Re-public/, at <http://www.re-public.gr/en/?p=135>.

 [454]: Robert Ellickson, Order Without Law: How Neighbors Settle Disputes
 (Cambridge, MA: Harvard University Press, 2005).

 [455]: Bruno Latour, “We Are All Reactionaries Today,” Re-public, at
 <http://www.republic.gr/en/?p=129>.

 [456]: John Seely Brown, personal communication, January 26, 2008.

==============================================================================

	Title:  Viral Spiral - How the Commoners Built a Digital Republic of
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