All Hail Creative Commons: Stanford professor and author Lawrence Lessig plans a legal insurrection

Stanford law professor and author Lawrence Lessig and a small band of
collaborators at MIT, Duke, Harvard and Villanova are about to embark on a
new endeavor that could help reignite the global high-tech economy.

Stanford law professor and author Lawrence Lessig and a small band of
collaborators at MIT, Duke, Harvard and Villanova are about to embark on a
new endeavor that could help reignite the global high-tech economy.

A prolific thinker, writer and doer, and a national authority on
intellectual-property law and a former columnist at The Industry Standard,
Lessig is perhaps best known as the author of two of the most important
books yet produced about computers, the Internet and how our legal system
deals with them: “Code and Other Laws of Cyberspace,” and his more recent
work, “The Future of Ideas.”

In an interview last week, Lessig confirmed the basic details about his
latest venture, Creative
Commons
, which is slated to be formally unveiled in a few months.

In a boon to the arts and the software industry, Creative Commons will make
available flexible, customizable intellectual-property licenses that
artists, writers, programmers and others can obtain free of charge to
legally define what constitutes acceptable uses of their work. The new forms
of licenses will provide an alternative to traditional copyrights by
establishing a useful middle ground between full copyright control and the
unprotected public domain.

The first set of licensing options Creative Commons plans to make available
are designed mostly for people looking for some protections as they move
their wares into the public domain. Those protections might include
requirements that the work not be altered, employed for commercial purposes
or used without proper attribution.

Lessig adds that it’s possible Creative Commons’ licenses may eventually
evolve to include options that permit or enable certain commercial
transactions. An artist might, for example, agree to give away a work as
long as no one is making money on it but include a provision requiring
payments on a sliding scale if it’s sold. As participation in the Commons
project increases, a variety of specific intellectual-property license
options will evolve in response to user needs, which in turn would create
templates for others with similar requirements.

Within a few months, artists, writers and others will soon be able to go
online, select the options that suit them best and receive a custom-made
license they can append to their works without having to pay a dime to a
lawyer, let alone the thousands of dollars it typically costs to purchase
similar legal services.

“We also want to facilitate machine-readable languages,” adds Lessig, who
will be taking a partial leave from Stanford to help jump-start the Creative
Commons effort.

In Lessig’s model, an MP3 song or a document or any other intellectual
property would contain a special machine-readable tag that specifies the
exact licensing terms approved by its creator. That means film students
making a movie, for example, could do a search, say, for jazz songs released
under public domain-friendly licenses that they can use for their soundtrack
without charge.

At the same time, Creative Commons also plans to build a “conservancy” to
facilitate the preservation and sharing of intellectual property.

A Win-Win Proposition

In one masterstroke, Lessig and colleagues will empower creators of
intellectual property by giving them more control over their work while also
increasing the communal technical resources that contribute to innovation
and growth. The result will be a new spark of life for the Internet, and for
the tech sector in general.

Rather than abandon an outdated software program, for example, a computer
company would have the option of donating its source code to the Creative
Commons conservancy, where people could build on it to create other new and
useful products.

Some of that activity, of course, is already taking place within the
often-chaotic open-source software community. But many mainstream business
executives have been reluctant to hop aboard the open-source bandwagon. Some
of them have expressed fears that the origins and ownership of certain
open-source code projects could eventually come into question. Many of them
would prefer to play it safe, deal with proprietary vendors and not take any
chances.

The Creative Commons conservancy will address some of those fears, in part,
by providing access to more reliable legal protections that will make
participation in open-source projects more likely. The implicit guarantees
that usually accompany most open-source projects will be turned into the
more explicit, ironclad licensing language that helps build confidence among
information-technology professionals. Once an owner has formally conserved a
piece of work, for example, any risks of inadvertent copyright infringement
related to that work will be greatly reduced, if not eliminated entirely.

The project’s backers hope that over time, companies and individuals may
even receive tax breaks for donating works to the conservancy. That outcome
could encourage the release of additional technical resources that everyone
can use.

The Problem With Copyright Law

For years now, Lessig and other critics have maintained that inflexible
copyright rules as they exist often just protect entrenched — and usually
uncreative — interests at the expense of virtually everyone else, including
many of those the copyright rules were originally supposed to protect.

He points out, for example, that when Congress first enacted copyright law
in 1790, the protection extended for a term of 14 years, which could be
renewed for another 14 years if the author was still alive. Congress has
since increased that term to the life of the author plus 70 years. Given
current life expectancies, that means a corporation can now bank on
preventing a piece of intellectual property produced by a 30-year-old today
from falling into the public domain for more than a century.

Lessig says such practices run contrary to one of the main reasons copyright
law was conceived in the first place. Originally, he says, copyright and
patent laws sought to balance two competing interests: protecting and
rewarding innovators for their work, but also making sure innovations were
available for reuse or repurposing by others after a reasonable length of
time.

The rationale for that policy goes something like this:

The first person who figures out a new invention — say, the wheel —
deserves to get rich. But that person should not have a right to prevent
others from using his or her invention for so long that future progress is
hampered. What’s often missed by the most ardent private-property stalwarts
(usually big-company lawyers, incidentally) is that the intended goal of the
copyright system was to provide incentives for creativity not only for the
originators of new ideas but also for others who want to use and build on
those ideas in other ways.

Unfortunately, over the years concentrated financial interests have
convinced Congress to steadily shift that balance. Privatized rights have
won favor over the public interests that were once a far more essential
aspect of copyright protections. That trend has only accelerated recently,
as Congress has caved in to one demand after another from big media firms,
Microsoft and others to “strengthen” copyright protections for a variety of
high-tech digital goods.

On one level, the Creative Commons idea is all about commerce. But its
deeper significance does not involve commerce in its usual form. Lessig
isn’t just trying to make his own cash register ring. Instead, his goal is
to get millions of others ringing by making it easier to create new goods,
products and services. In a larger sense, the goal is to make the world
safer for innovators by nurturing the conditions that lead to economic
growth and technological progress.

Not a Moment too Soon

In his most recent book, Lessig makes a convincing case that the health of
the Internet and the tech sector in general is being choked off by
increasingly successful efforts to erect proprietary bottlenecks that
prevent competition. The most obvious example is Microsoft’s Windows
operating system, which remains the subject of federal antitrust litigation.
But there are many other similar, although less well-publicized, cases that
could prove equally worrisome over time.

A company called Thomson Multimedia, for example, owns patents to the
popular MP3 digital music format. So far, the company has made it relatively
easy for others to adopt the technology, which has facilitated its wide use
and rapid acceptance. But like Microsoft, Thomson could decide at some
future date that the time has come to more fully exploit its dominant
position as the key enabler of online music-delivery systems. That
uncertainty puts at risk the business plans of every company or artist that
relies on MP3s, which is just one of the reasons there are so few investors
interested in online music ventures these days. It’s just too risky building
a business in a sandlot someone else owns.

Lessig says the solution to that and other problems can be found in the
age-old idea of the commons — that is, the notion that society and the
economy are better off when certain resources are protected and made freely
available. Public streets, for example, provide accessible places where
businesses can set up shop and where goods can be transported. Likewise,
laws that prevented phone companies from discriminating between voice and
data traffic allowed free use of those lines for other purposes, which in
turn helped create the Internet.

The Creative Commons conservancy service is intended to extend that approach
to as many other areas as possible.

“One of our goals is to lower the cost to give something away, and to make
it harder for people to be ambushed [by proprietary claims],” says Lessig.

The result will be a more robust, healthier high-tech economy.

And this time, remarkably, a lawyer will actually deserve credit for helping
make it happen.

Author: Hal Plotkin

News Service: The SF Gate

URL: http://www.sfgate.com/cgi-bin/article.cgi?file=/gate/archive/2002/02/11/creatcom.DTL