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    Lawrence Lessig – Creative Commons: 4 years on

    Reviewing the first four years of Creative Commons, Lawrence Lessig remembers that CC licences were designed to help open a space for creativity freed of much of the burden of copyright law. CC licences became a simple way for authors and artists to express the freedoms they want their creativity to carry.


    Creative Commons: Aims and lessons


    So what problem is Creative Commons trying to solve? And what have we learned so far?


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


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


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


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


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


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


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


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


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


    What’s wrong with digital rights management?


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


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


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


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


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


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


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


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


    Call these technologies in general “Digital Rights Management” technologies (DRM). My claim is that there was a strong push to layer DRM onto the Internet, and that that push was a bad thing.


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


    So how would Creative Commons licenses help with this problem? Our view is that they would help restore some balance between both extremes. We believed that if we provided a simple way for creators to say what freedoms they intend their content to carry, that would, for many creators, be enough. Not enough for Hollywood releasing a new film, perhaps. But enough for the widest range of creators who are making accessible their creative work through the Net.


    Or put differently, we wanted to offer a technology to make it easy to say what rights were reserved, and what rights were not, which we hope would make it unnecessary to then add technology to enforce the rights reserved. “Digital Rights Expression” (DRE) was our aim. And our hope was that good DRE would staunch at least some of the demand for crude DRM.


    But why not add DRM to the rights expressed through Creative Commons DRE? What’s wrong with a cheap system to enforce the rights still reserved?


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


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


    Fair use


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


    The law recognizes three kinds of “uses” of copyrighted works:

    1. Free uses (uses that don’t trigger the law of copyright, such as reading a physical book);


    2. Regulated uses (uses that do trigger the law of copyright, such as republishing a book;


    3. Fair uses (uses that trigger the law of copyright, but which are nonetheless free because the law deems them “fair” — such as copying words from a book in a review of the book).


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


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


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


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


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


    That’s the problem that DRM creates for “fair use.” How can Creative Commons help solve this problem?


    In two important ways:

    1. By building a layer of Creative Commons marked creativity, we increase the range of creative work that doesn’t need the locks of DRM.


    2. By banning the use of DRM that interferes with the freedoms guaranteed by our license, we assure that the freedoms we’ve built into our license are not restricted by DRM. Among these freedoms, the very first is “fair use.” As section 2 of every license says, “Creative Commons licenses do not modify or restrict ‘fair use.’”


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


    Further links


    Free culture


    iCommons


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