Setting online works free doesn’t please everyone

In the swirling debate over digital rights and intellectual property, Bram Cohen ran into a surprising discovery as he developed a new software program in the past year: It’s an uphill battle to convince people that individuals can make their work freely available over the Internet, available for folks to use however they want without any obligations.

In the swirling debate over digital rights and intellectual property, Bram Cohen ran into a surprising discovery as he developed a new software program in the past year: It’s an uphill battle to convince people that individuals can make their work freely available over the Internet, available for folks to use however they want without any obligations.

Cohen, a 26-year-old independent programmer in San Francisco, is the creator of BitTorrent, a piece of software designed to make the transfer of large chunks of information over the Internet more cost-efficient.

His goal is to make BitTorrent’s protocol an open technical standard for peer-to-peer file transfers — the kind of technology behind Napster — in the same way that http (hypertext transfer protocol) has become a standard for transmitting information between browsers and Web servers.

To encourage this, Cohen placed as few restrictions on the program’s use as possible — that is, he placed no restrictions, entering it instead into the public domain. But it turns out that, initially, the concept of “public domain” deeply troubled his prospective customers and users. Their reaction to Cohen’s apparent act of generosity was that of a domesticated animal that’s suddenly let go: They didn’t know what to do with the freedom.

“Basically, the objection was that there’s not enough legalese on there — there’s been a lot of fear, uncertainty and doubt spread by lawyers and some open-source people saying that you can’t just put something in the public domain,” Cohen said.

Cohen’s experience is one small reflection of just how politicized the issue of intellectual property on the Internet has become on every level. The Internet, once lauded as a frontier of freedom and a place for innovation to flourish, has become a battleground in an emerging war over who should own vast swaths of information and the next good idea.

On one side are the large players in the businesses of software, publishing, movies, cable television and music, many of whom have made piracy a priority concern. Their stock prices and livelihoods depend on long-established revenue streams guarded by increasingly stringent copyright laws, global treaties, education campaigns and digital-rights-management technologies.

On the other are a rapidly growing number of people including open-source advocates, consumers, civil-liberties advocates and professors at some of the nation’s top universities. They argue that the large companies are abusing intellectual-property laws and creating new technologies to privatize and close off access to information, effectively choking off innovation and restricting progress.

‘Public domain’ at stake

One casualty in this war, charge intellectual-property experts, is the public domain. It is a hard concept to defend because not even the intellectual-property experts can agree on what exactly is in the public domain. It is a moving target.

Yet there is a growing sense among even sophisticated intellectual-property practitioners such as Intel that it is an important and valuable concept and that we may need to do more to identify what is in it, as well as its value and relationship to the process of innovation.

“The public domain, for the most part, has been uncharted terrain,” Pamela Samuelson, a pioneering law professor in the field of intellectual-property law at the University of California, Berkeley, notes in an academic paper. “Sometimes, it seems an undifferentiated blob of unnamed size and dimensions.”

But as we increasingly become a networked, digital economy driven by ideas, and as more information and knowledge go digital, attempts to define the public domain could become valuable in determining the impact of public policy on public-information resources and the value and importance of certain kinds of information to public interest and innovation, says Samuelson, who is also co-director of the Berkeley Center for Law and Technology.

Meanwhile, efforts to clarify the issues are under way. Several research reports published in May by the New America Foundation, a Washington, D.C., think tank, attempt to illustrate types of information that might be in the public domain, including collaborative efforts between Internet users that produce online databases, open-source software initiatives, Internet libraries and archives and peer-to-peer file-sharing activities.

Clarifying the issues

This fall, the idea of a constitutionally guaranteed balance among incentives to innovate, progress in science and arts, and the public domain’s contribution to that progress will receive heightened scrutiny when a couple of high-profile projects spearheaded by a partisan in the debate, Stanford Law School professor Lawrence Lessig, come to fruition.

One centers on Eldred v. Ashcroft, a legal case concerning copyright-term extensions that the Supreme Court has agreed to hear. Lessig is representing Eric Eldred, whose Eldred Press posts literary works on the Internet.

The other is the launch of a nonprofit corporation Creative Commons (, an ambitious effort dedicated to the idea that it’s possible to fine-tune the exercise of intellectual-property rights in cyberspace.

Most lawyers would say the public domain is made up of intellectual property on which creators’ exclusive rights have expired. But the pool of works that would qualify under this definition has evaporated over the years, say critics of the global-intellectual-property system.

Previously, creators had to register their works with the copyright office and renew their registrations; otherwise, their works fell into the public domain. But changes in copyright laws in 1976 and 1988 shifted the balance by making copyright protection automatic. The length of some of the terms extended to 95 years.

Reacting to these developments, as well as to what they describe as old business models, Lessig and his colleagues are attempting to build an online database of creative works as a way to show how creativity can be encouraged online without fostering piracy.

The Creative Commons project he and his colleagues unveiled in mid-May seeks to become a clearinghouse of rights, while providing customized licenses for movie makers, musicians and authors seeking, as Creative Commons executive director Molly Shaffer Van Houweling puts it: “Fame, fortune and freedom.” By that she means an ability to easily and cheaply experiment with different ways of promoting their work and using other peoples’ work online.

The purpose of the project is to counter the mentality that “it’s a choice between property versus anarchy, that it’s a choice between the American Way versus some bizarrely communistic system that we thought we had defeated,” Lessig said at the unveiling of the project in May.

How it works

People who are interested in using the system would simply surf to the Creative Commons Web site and fill out a template for the kind of license they want placed on their work. These licenses would tag their work.

Then, people looking for a certain kind of work — a teacher seeking illustrations for an online lesson plan, for example — could use the Creative Commons’ search engine to find work with the appropriately generous license. The Commons also has plans to establish an intellectual property conservancy where creators explicitly donate their works for use in the public domain.

For some, like Cohen, the software developer, projects such as the Creative Commons raise more questions than they answer because of the complexity and the many kinds of intellectual-property rights bundled in complex creative works.

In his own case, Cohen met the resistance to his initial no-strings offer by obtaining an open-source license based on a model from Massachusetts Institute of Technology. The only restrictions for the user are a liability disclaimer and that the author of the code be credited if the source is redistributed.

Still, as one advocate at a sister nonprofit-advocacy group puts it, Creative Commons’ effort at least provides people with a glimpse of an alternative vision and understanding of creativity on the Internet. It also adds a little momentum to a traditionally fragmented but growing constituency in a political environment heavily influenced by the entertainment industry.

“The Creative Commons goes outside the policy process,” notes Gigi Sohn, president of the public-interest advocacy group Public Knowledge in Washington, D.C. “My organization is dedicated to try and change law and policy in this area, but that’s not going to be something that happens tomorrow.”

So is the Commons the be-all and end-all solution? “Of course not,” she said, “but I think it’s a very, very good place to start.”

Sarah Lai Stirland is a free-lance writer who writes frequently about public policy and technology.

Author: Sarah Lai Stirland

News Service: The Seattle Times


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