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.
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.
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.”
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.
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.
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).
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.
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.”
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.”
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.”
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.”
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.”
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.
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.”
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.
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.
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.
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.
“The Internet is today’s broadcasters,” said Lessig in a 2006 speech. “They are facing the same struggle.”
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.”
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.
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.)
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.”
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.
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.”
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.”
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.”
Copyright: © 2008 by David Bollier All rights reserved. No part of this book may be reproduced, in any form, without written permission from the publisher. The author has made an online version of the book available under a Creative Commons Attribution-NonCommercial license. It can be accessed at http://www.viralspiral.cc and http://www.onthecommons.org. Requests for permission to reproduce selections from this book should be mailed to "Permissions Department, The New Press, 38 Greene Street, New York, NY 10013". Published in the United States by The New Press, New York, 2008 Distributed by W. W. Norton & Company, Inc., New York ISBN 978-1-59558-396-3 (hc.) CIP data available The New Press was established in 1990 as a not-for-profit alternative to the large, commercial publishing houses currently dominating the book publishing industry. The New Press operates in the public interest rather than for private gain, and is committed to publishing, in innovative ways, works of educational, cultural, and community value that are often deemed insufficiently profitable. www.thenewpress.com A Caravan book. For more information, visit www.caravanbooks.org.
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