Last week, the NY Public LIbrary presented Who Owns Culture with Stanford Law professor Lawrence Lessig, Wilco frontman Jeff Tweedy and author Steven Johnson. The panel discussed the value of free and unfettered access to music on the internet.
The NY Times reported, Exploring the Right to Share, Mix and Burn
Both Mr. Tweedy and Mr. Lessig used their talk to say that the Web, in an age where conglomerated FM radio has squeezed out virtually all possibility of hearing anything worthy and new, is where fans are best exposed to music they might want to buy. And during the presentation (which was streamed live on Wilco’s Web site), Mr. Lessig added that the decision to outlaw downloading would have a profoundly inhibiting effect on the creation of culture. He said that in every instance, from the player piano to radio to VCR’s to cable, the law had landed on the side of the alleged “pirates,” allowing for the copying or broadcasting of cultural works for private consumption. Thus far, both the music industry and the film industry has succeeded in making it illegal for consumers to download their products.
Lessig responded: from the continuing-disappointment-that-is-the-NYTIMES department: “I’m not sure why there needs to be a NYTimes, if its role is simply to reinforce what people already think, especially with pieces like this. God forbid the Nation’s paper of record should reflect something more subtle or complex than the crudest view of an important debate.”
Other bloggers reported the event, including Jason Kottke and Andrew Hultkrans
Earlier in the day, Prof. Lessig spoke at Brooklyn Law about default rules of copyright in the digital age, access to scholarship and the Creative Commons project. Lessig’s basic premise is that the application of existing copyright law to the digital world considers certain uses, which would be considered normal uses of copyrighted material in the analog world, to be infringing uses, because in the digital realm, we make copies in lieu of moving physical objects around. As the cost of copying drops to zero, the law still treats each copy as if it is an infringing use, rather than a normal use. The way that we use information in the digital world should reflect the realities of the technology and encourage the free flow of information as the primary goal, not the monetizing of each individual transaction.
The internet changes the economics of copyright in substantial ways. Whereas before computers, distribution of copies required the distribution of physical copies which have a significant marginal cost. On the internet, the marginal cost of making a copy drops close to zero. The economics of access to information are different on the internet, which removes many of the cost barriers to distribution. (Although the marginal costs of making digital copies is tiny, the initial cost is still relatively high.)
The commercial value in a copyrighted work varies with time. As time goes on, most works exhaust their potential commercial value, e.g. out of print books. The relevance of the work, the popularity of the creator and the passage of time are among the factors that increase or decrease the value of a work. As an artist gains notoriety, earlier works may appreciate in value. Preemptive non-commercial licensing allows the artist to use his existing work to gain that notoriety without sacrificing the potential of future commercial exploitation. It also allows individuals to access the work in its post-commercial life.
The Creative Commons(CC) project is a sensible way for creators and copyright owners to preemptively license their works to allow for such “normal” uses while still protecting the works from unlicensed commercial exploitation by third parties. Academics should be the most accepting towards adopting CC licenses, because most are mainly interested in discussing their ideas and contributing to public discourse. Prof. Lessig has decided to no longer “publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.”
Unfortunately, not even law students and lawyers, much less the general public, fully understand the impact of these licenses. With the numerous different possibilities the CC licensing schema provides for licensing, the terms can be confusing. Creators will be reluctant to license their works without understanding more about copyright law and their potential options. A license that allows for non-commercial use and requires attribution is significantly more restrictive than a license that allows for commercial use, allows for the creation of derivative works with no attribution requirement. The Creative Commons licenses allow for various permutations and freedoms.
Consider the example of the smart lawyers behind the Between Lawyers blog, who debated whether to adopt a CC license for their new blog. Dennis Kennedy writes, “The CC licenses are also very hard to find on the CC website. A visit to the CC site and blog will make you sympathetic to the arguments of those who criticize the CC licenses as more of a marketing gimmick than a legal standard. I’d like to see more explanation of the licenses and discussion of current issues (e.g., the issues Marty Schwimmer raised about Bloglines) and less self-congratulatory material.” (They eventually went with the Attribution-NonCommercial-NoDerivs 2.0 license).
Of course, parties can still contract around the Creative Commons license. This makes it ideal for creators who want their works to be seen and heard, but want to share in any profit resulting from uses of their works. The creators can preemptively license the work and then license it for money later in the copyright’s life. Creative Commons does not explain this aspect well enough.
As businesses may be reluctant to adopt GPL software because of the viral aspect of its licenses, some artists may be afraid to use Creative Commons licensed works, because the CC licenses can have a similar viral aspect (the “share-alike” option.)
What can CC do to make more creators comfortable with preemptively licensing their works, especially those creators who are not copyfighters? First, perhaps it needs better names than “Attribution-NonCommercial-NoDerivs.” These are descriptive, but potentially confusing for artists without legal counsel and explained better as individual schemes for different works discretely from the over-arching philosophy. Secondly, CC should emphasize that adopting a CC license does not preclude the artist from utilizing the work commercially in the future, except for when it does not.
As CC refines its pitch to creators, it will be interesting to see how widely adopted these preemptive licensing schemes become. Additionally, it will be interesting to see what happens with the first case litigated concerning a CC-licensed work.
Related, Joe Gratz blogged the Publication, the Public University, and the Public Interest conference at the University of Minnesota.
In a different form of accessibility, Orin Kerr finds that Amazon.com is selling individual law review articles.
