An infrastructure of code gives rise to a movement for free culture.
When the CC licenses were first launched, many regarded them as a boring legal license that may or may not really matter. The real surprise was how the CC licenses became a focal object for organizing a movement. As more users began to adopt the licenses in 2003 and 2004, they ceased being just a set of legal permissions and became a cool social brand. The CC licenses and logo became symbols of resistance against the highly controlled, heavily marketed, Big Brother worldview that Hollywood and the record industry seem to embody. The CC licenses offered a way to talk about one’s legal and creative rights in the Internet age, and to cite to a positive alternative — the sharing economy. With no paid advertising to speak of, the CC logo came to symbolize an ethic and identity, one that stood for artistic integrity, democratic transparency, and innovation.
Glenn Otis Brown recalls how people spontaneously took up the license to express their anger at the media establishment and their yearning for a more wholesome alternative: “If you’re frustrated with the way the world works now, frustrated with the way the media is becoming more democratized but all these laws aren’t really facilitating that,” said Brown, “you can just cast a little virtual vote for a different sort of copyright system by putting the ‘Some Rights Reserved’ tag on your Web page. But also, practically, you can help create pools of content that people can work with and make it so much easier to participate.” Without really planning it, the Creative Commons became much more than a system of free licenses for sharing. It became a symbol for a movement. Communities of social practice began to organize themselves around the CC project.
“Inside of the organization, we always talked about how we really had two organizations,” said Brown. “One was Creative Commons, the movement; and one was Creative Commons, the machine.”
The tension between the machine and the movement has been an animating force in the evolution of the Creative Commons. “You want to have something that’s actually useful to people,” said Brown, “but you also have to get people excited about it, and build up your constituency.”
This has been a recurrent motif for the organization — pragmatic, improvisational outreach to distinct constituencies as part of a larger attempt to build a movement. There has always been a corresponding pull, however, “not to put ‘the machine’ at risk by incorporating the new licenses into every last one of our software tools,” said Brown. The integrity of “the machine” ultimately needs to be respected.
Even as the machine was getting built, Lessig was taking steps to stoke up a movement. In 2004, Lessig published his third book in five years, Free Culture. The book described, as the subtitle put it, “how big media uses technology and the law to lock down culture and control creativity.” Lessig’s earlier books, Code and The Future of Ideas, had critiqued the alarming trends in copyright law, explained the importance of the commons, and set forth a philosophical rationale for what became the CC licenses. Now Free Culture provided a wide-ranging survey of how incumbent industries with old business models — for recorded music, film, broadcasting, cable television — were (and are) curbing traditional creative freedoms and technological innovations. Drawing explicitly on the ideas of freedom developed by Richard Stallman in the 1980s, and upon legal history, politics, and colorful stories, Lessig argued that industry protectionism poses a profound harm to creators, business, and democratic culture — and that action needed to be taken.
Although Free Culture repeats many of the fundamental arguments made in his earlier books, Lessig’s arguments this time did not sound like a law professor’s or academic’s, but more like an activist trying to rally a social movement. “This movement must begin in the streets,” he writes. “It must recruit a significant number of parents, teachers, librarians, creators, authors, musicians, filmmakers, scientists — all to tell their story in their own words, and to tell their neighbors why this battle is so important. . . . We will not reclaim a free culture by individual action alone. It will take important reforms of laws. We have a long way to go before the politicians will listen to these ideas and implement these reforms. But that also means that we have time to build awareness around the changes that we need.”
Lessig had reason to think that his analysis and exhortations would find receptive ears. He was now a leading voice on copyright and Internet issues, and well known through his earlier books, public speaking, and Eldred advocacy. The launch of the Creative Commons was thrusting him into the spotlight again. Adoption of the CC licenses was steadily growing in 2003 and 2004 based on the most comprehensive sources at the time, search engines. Yahoo was reporting in September 2004 that there were 4.7 million links to CC licenses on the Web. This number shot up to 14 million only six months later, and by August 2005 it had grown to 53 million.
The decisive choice, four years earlier, to build a suite of licenses that could propagate themselves via open networks was bearing fruit.
It was a pleasant surprise for the organization to learn that a great deal of individual usage of the CC licenses was fairly spontaneous. Persuading large companies and respected institutions to use the CC licenses was a more difficult proposition. Lessig therefore spent a fair amount of time trying to get prominent institutions to adopt the licenses and give them some validation. Among the early converts were MIT, Rice University, Stanford Law School, and Sun Microsystems, supplemented by some relatively new organizations such as Brewster Kahle’s Internet Archive and the Public Library of Science, a publisher of open-access journals.
Personal diplomacy can accomplish only so much, however, and in any case the Internet itself needed to be leveraged to disseminate the licenses and educate the public. One challenge, for example, was to introduce the CC licenses — which are not, after all, a self-evident need for most people — in a clear, compelling way. Most authors and artists have little idea what licenses they may want to choose, and their implications for how they might be able to sell or share works in the future. People needed a quick and easy way to make intelligent choices. It fell to Lisa Rein, the first technical director at CC, in late 2001, to develop a license-generating interface for the Web site. The quandary she faced was how to maximize user choice in selecting licenses while minimizing complexity.
The Web interface for the licenses has steadily improved over the years, but in a sense, those improvements have been offset by a growing complexity and number of CC licenses. Some critics have complained that the whole CC scheme can be a bit daunting. Yes, the licenses can ensure certain freedoms without your having to hire an attorney, which is clearly an improvement over relying on the fair use doctrine. But that does not mean that anyone can immediately understand the implications of using a NonCommercial or ShareAlike license for a given work. Any lurker on a CC listserv soon encounters head-scratching questions like “Can I use a BY-NC photo from Flickr on my blog if the blog is hosted by a company whose terms of service require me to grant them a worldwide, nonexclusive license to use any work hosted by their service, including for commercial use?”
By far the more important vehicle for promoting usage of the CC licenses has been software code. Lessig and the CC team realized that if the licenses could become an embedded element of leading search engines, Web publishing tools, and Web 2.0 platforms, it could powerfully promote license use. Integrating the code into existing Web sites and software can pose some serious technical challenges, however. Figuring out how to integrate the CC licenses with popular software applications, Web services, and digital file formats has fallen chiefly to Nathan Yergler, the chief technology officer of Creative Commons. Over the years, he and other CC developers have come up with a variety of applications to help make software infrastructures more friendly. One program that was developed, ccHost, is a content management system that has licensing and remix tracking built into its core. JsWidget is a simple javascript widget that developers can easily integrate into their sites to enable users to choose a license without leaving the site. Creative Commons has made it a standard practice to coordinate its work with technology volunteers, startup companies, and nonprofits with a stake in digitally enabling open licensing. It does this work through a CC development wiki, the cc-devel mailing list, Internet Relay Chat, World Wide Web Consortium working groups, and participation in Google’s annual “Summer of Code” program for student programmers.
Lessig and top CC staff have worked hard at convincing executives at major software enterprises to incorporate the CC licenses into a software application or Web site. One early triumph came when the makers of Movable Type, a blogging platform, agreed to make it easy for users to tack a CC license onto their blogs. Two months later, the O’Reilly empire of software blogs adopted the CC licenses. Then programmer Dave Winer embedded the licenses in his new Web log software in 2003. Blogs may not be core infrastructure for the Internet, but they are plentiful and popular, and have given Creative Commons enormous visibility and a high adoption curve.
It had always been Lessig’s ambition that the major search engines would be reengineered to help people find CC-tagged content. To help prove that it could be done, Creative Commons built its own jerry-rigged search engine that retrieved content tagged with CC metadata. Lessig and Brown, meanwhile, made numerous diplomatic overtures to Google and Yahoo executives and software engineers. After two years of off-and-on conversations, both search engine companies agreed in 2005 to incorporate changes into their advanced searches so that users could locate CC-licensed content. (The Google advanced search does not use the Creative Commons name, but simply asks users if they want content that is “free to use or share,” among other options.) The search engine exposure was a serious breakthrough for Creative Commons’s visibility and legitimacy.
After a few years, the CC licenses were integrated into a number of other software platforms. It became possible to search for CClicensed images (Flickr), video programs (blip.tv), music (Owl), and old Web content (Internet Archive, SpinXpress). With these search tools, Internet users had a practical way to locate blues tunes that could be remixed, photos of the Eiffel Tower that could be modified and sold, and articles about flower arrangements that could be legally republished. Advertisers, publishers, and other companies could search for images, songs, and text that could be licensed for commercial use.
Lessig and Brown worked hard to get other major Web and software companies to make it easy for users to tag content with CC licenses. The ultimate goal was to make it easy for users to automate their preferences. Joi Ito, a Japanese venture capitalist and democratic reformer who became the chair of the Creative Commons’s board of directors in 2006, put it this way: “Every input device that you have, whether it’s a camera phone, a digital camera or PowerPoint software, should allow you to automatically set it to the CC license that you want. And the minute you take that picture, you’ve already expressed how you would want that picture to be used.”
Creative Commons also urged open-source software communities to incorporate CC-made software into their applications so that users can more easily tag content with the licenses or find licensed works. Firefox, for example, has integrated a Creative Commons search function into the drop-down menu of its browser search interface. It also has a plug-in module called MozCC that scans for any CC metadata as you browse Web pages, and then reports on the browser status bar how content is licensed. CC licenses have been integrated into other software as well, such as Songbird, a free software media player, and Inkscape, a free vector-graphics program similar to Adobe Illustrator.
Application by application, Web site by Web site, the Creative Commons board and staff have tried to insinuate the licenses into as many software applications and Web services as they could, in a kind of behind-the-scenes enactment of Lessig’s book Code. If code is law, then let’s write it ourselves! The diffusion of the licenses has tended to occur through personal connections of Lessig, CC board members, and friendly tech entrepreneurs and programmers. Joi Ito used his contacts at Sony to persuade it to develop a video remix Web site in Japan that uses CC licenses as the default choice. For Sony, the licenses help the company avoid any whiff of legal impropriety because users must stipulate whether their video remixes may be shared or not.
In 2006, Microsoft went so far as to come out with a plug-in module for its Word program, enabling writers to tag their text documents with CC licenses. At the time, many CC fans grumbled at the hypocrisy of Microsoft, the five-hundred-pound gorilla of proprietary software, embracing the Creative Commons, even in such a modest way. But for Lessig and CC board members, any business that chooses to advance the reach of free culture — in this case, by accessing the 400 million users of Microsoft Office — is welcomed. While this ecumenical tolerance has made the Creative Commons a big-tent movement with an eclectic assortment of players, it has also provoked bitter complaints in free software and Wikipedia circles that the Creative Commons promotes a fuzzy, incoherent vision of “freedom” in the digital world (an issue to which I return in chapter 9).
One vexing problem that CC developers confronted was how to digitally tag stand-alone files as CC-licensed work if they are not on the Web. How could one tag an MP3 file, for example, to show that the music is under a CC license? One problem with just inserting a CC tag onto the MP3 file is that anyone could fraudulently mark the file as CC-licensed. To prevent scams, Neeru Paharia, then CC assistant director, and other developers came up with a solution that requires any stand-alone digital files that are embedded with CC licenses to include a URL (Uniform Resource Locator) that links to a Web page verifying the assertions made on the file.
The practice of embedding CC license information on digital files has been called digital rights expression — a kind of benign analogue to digital rights management. The purpose is to embed information about the copyright status of a work in the digital file. Unlike DRM, the goal is not to try to build an infrastructure for enforcing those rights or controlling how people may use a work. “Instead of using technology to ensure that the consumer can’t do anything with it,” said Mike Linksvayer, CC vice president and former chief technology officer, “we’re trying to use technology to ensure that people can find a CC-licensed work. If they’re looking, for instance, for music that can remixed, then this information will help a search engine locate that information.”
Perhaps the neatest self-promotional trick that the Creative Commons has devised is to rely upon companies whose very business plans revolve around CC licenses. We will examine “open business” enterprises in chapter 10, but for now it is worth noting that a number of innovative companies use the licenses as a core element of their business strategy. These enterprises include Flickr (photo sharing), Magnatune (an online record label), Jamendo (a Luxembourg-based music site), and Revver (a video-sharing site that shares advertising revenues with creators).
Infrastructure grows old and occasionally needs to be updated and improved. The CC licenses have been no exception. As users have incorporated them into one medium after another, the unwitting omissions and infelicitous legal language of some parts of the licenses needed revisiting. After many months of discussions with many parts of the CC world, the Creative Commons issued a new set of 2.0 licenses in May 2004.
Another set of major revisions to the licenses was taken up for discussion in 2006, and agreed upon in February 2007.
By getting the CC licenses integrated into so many types of software and Web services, and even leveraging market players to embrace the sharing ethic, Creative Commons has managed to kill at least three birds with one stone. It has enlarged the universe of shareable Internet content. It has educated people to consider how copyright law affects them personally. And it has given visibility to its larger vision of free culture.
In one sense, the CC “machine” composed of the licenses, the CC-developed software, and the CC-friendly protocol was the engine for change. In another sense, the influence that Creative Commons has acquired derives from the social communities that gradually began to use its infrastructure. The social practice infused power into the “machine” even as the machine expanded the social practice. A virtuous cycle took hold, as the CC community used its self-devised legal and technological infrastructure to advance their shared cultural agenda.
Driving this cycle was an ever-growing staff and new managers working out of offices in downtown San Francisco. Although Lessig has been the chief executive officer and chairman of the board of Creative Commons for most of its existence, most day-to-day operating responsibilities fell to executive director Glenn Otis Brown until his departure in 2005, and then to general counsel Mia Garlick, who left in 2007. (Both took jobs at Google.) Key executives at Creative Commons in 2008 included Mike Linksvayer, vice president; Eric Steuer, creative director; Diane Peters, general counsel; Nathan Yergler, chief technology officer; and Jennifer Yip, operations manager. The annual budget, which was $750,000 in 2003, had grown to $3.6 million in 2008 (a sum that included the Science Commons project). Much of this funding came from foundations such as the John D. and Catherine T. MacArthur Foundation, the William and Flora Hewlett Foundation, the Rockefeller Foundation, and Omidyar Network.
Once the CC machine had secured its footing, Lessig and the CC staff paid close attention to the movement — the social communities that find utility and meaning through Creative Commons— and to developing new software and projects that these early adopters would welcome. In 2006, the organization hit upon the idea of hosting a series of “salons” in major cities. The gatherings have become a big success, and are now replicated in cities throughout the world. Artists talk about how they use CC licenses; entrepreneurs explain how their business models work; remix artists perform their work. The events, free and open to the public, combine testimonials about free culture, personal networking, entrepreneurial idea-mongering, live performances, and partying. The CC crowd seems to enjoy partying; they do it well. Every December, there are gala anniversary parties in groovy San Francisco hot spots. There have been virtual parties in the immersive online world, Second Life. Because CC users tend to include some of the most adventurous artistic talent and eclectic innovators around — people who know where the truly cool night spots are — CC parties tend to be lively, good times. The parties in Rio and Dubrovnik, at the iCommons Summits, were memorable international happenings, for example — occasions, as one self-styled Lothario boasted to me, “where a guy could dance with a woman from every continent of the world in a single evening.”
Add to the mix tech-oriented college students, another key sector of free culture activism, and there is even more youthful energy. Hundreds of college students participate in a nationwide student organization, FreeCulture.org, later renamed Students for Free Culture. The group got its start in 2004 when some students at Swarthmore College began investigating the reliability of Diebold electronic voting machines; the company invoked copyright law in an attempt to keep the problems secret, leading to a public confrontation that Diebold lost. Nelson Pavlosky and Luke Smith, who were also inspired by Lessig’s advocacy, co-founded the group, which has since spawned over thirty quasi-autonomous chapters on campuses across the United States and a few foreign nations. The organization tries to be a grassroots force on Internet, digital technology, and copyright issues. It has mounted protests against CDs with digital rights management, for example, and hosted film remixing contests and exhibits of CC-licensed art at NYU and Harvard. Students for Free Culture also organized a “no-profit record company/recording collective,” the Antenna Alliance, which gave bands free recording space and distributed their CC-licensed music to college radio stations.
We have looked at the machine and many parts of the movement, but not at one of the most significant forces fueling Creative Commons — the dozens of national projects to adapt the licenses to legal systems around the world. The long-term reverberations of this movement — which includes activists in Brazil, Croatia, South Africa, Egypt, Peru, Scotland, and dozens of other countries — are only beginning to be felt.
The commoners mount a transnational mobilization to build their own digital commons.
It is a measure of Lessig’s ambition for Creative Commons that only five months after the release of the licenses, in April 2003, he instigated a move to take the idea global. Glenn Brown remembers objecting, “I don’t know how we’re going to get this done! Larry was like, ‘We have no other choice. We have to do this. This needs to be an international organization.’”
Professor James Boyle, a board member, was aghast. “That’s the stupidest thing I’ve ever heard,” he said upon hearing the idea. “I was practically foaming at the mouth,” he recalled, noting that it was “just insane” to try to adapt the licenses to the mind-boggling complexities of copyright laws in scores of nations.
Asschenfeldt set about inventing a system for gathering teams of volunteers, usually associated with a law school or technology institute, to become CC affiliates. Once an affiliate institution and project lead are chosen, the project lead produces a first draft of the licenses, which then undergoes public discussion, rewriting, and a final review by the new international arm of Creative Commons, CC International.
In a pre-Internet context, the whole idea of a creating a new international license architecture and network of legal experts might seem ridiculously unrealistic. But by 2003 there were enough examples of “distributed intelligence” popping up that it no longer seemed so crazy to think that a passionate corps of dispersed volunteers could collaborate as catalysts for change. In any case, following the Eldred defeat, Lessig and Brown came to believe, as discussed earlier, that the Creative Commons needed to be both a machine and a movement.
Going international with the licenses offered an appealing way to grow both simultaneously without forcing unpleasant trade-offs between the two, at least initially. Drafting the licenses for a country, for example, helps convene top lawyers committed to the idea of legal sharing and collaboration while also mobilizing diverse constituencies who are the potential leaders of a movement.
According to Jonathan Zittrain, an early collaborator on the project and a board member, Creative Commons at the international level is more of a “persuasive, communicative enterprise than a legal licensing one.”
The first nation to port the CC licenses was Japan. This was partly an outgrowth of a five-month sabbatical that Lessig had spent in Tokyo, from late 2002 through early 2003. There were already stirrings of dissatisfaction with copyright law in Japan. Koichiro Hayashi, a professor who had once worked for the telecom giant NTT, had once proposed a so-called d-mark system to allow copyright owners to forfeit the statutory term of copyright protection and voluntarily declare a shorter term for their works. In the spring of 2003, a team of Japanese lawyers associated with a technology research institute, the Global Communications Center (GLOCOM), working with CC International in Berlin, set about porting the licenses to Japanese law.
Yuko Noguchi, a former Lessig student and lawyer who later became the legal project lead, explained that the CC licenses are a culturally attractive way for Japanese to address the structural problems of copyright law. Japan is a country that prizes harmony and dislikes confrontation. The licenses offer a way to promote legal sharing without forcing bitter public policy conflicts with major content industries.
During his sojourn in Japan, Lessig had a fateful meeting with Joichi Ito, who in many ways embodies the tech sophistication, democratic zeal, and cosmopolitan style of the international Creative Commons movement. Widely known as Joi (pronounced “Joey”), Ito, forty-two, was born in Japan and educated in the United States. Disaffected with formal education in the U.S., where he studied computer science and physics, he dropped out and began his highly unusual career in Japan as an activist, entrepreneur, and venture capitalist. He has worked as a nightclub disc jockey, and brought industrial music and the rave scene to Japan, but he has also become a talented venture capitalist and early stage investor in such companies as Six Apart, Technorati, Flickr, SocialText, Dopplr, and Rupture. Lessig and Ito became close friends; Ito later joined the Creative Commons board. He was appointed chairman of the board in 2007 and then, in 2008, he became chief executive officer when Lessig left to start a congressional reform project. Duke law professor James Boyle, a board member, replaced Ito as chairman.
Once it went public, the very idea of Creative Commons attracted many other people like Ito to its ranks: educated, tech-savvy, culturally fluent, activist-minded. In fact, following the American launch of Creative Commons, volunteers from many countries began to approach the organization, asking if they could port the licenses to their own legal systems. Finland became the second nation to adopt the licenses, in May 2004, followed a month later by Germany. In Europe, the early adopters included Denmark, Hungary, Scotland, Slovenia, Sweden, and Malta. In South America, CC licenses were introduced in Argentina, Chile, and Peru. In Asia, Malaysia and China ported the licenses, as did Australia. Israel was the first Middle Eastern country to port the licenses.
As each jurisdiction introduces its licenses, it typically hosts a gala public event to celebrate and publicize free culture. News media and government officials are invited. There are panel discussions about copyright law and digital culture; performances by musicians who use the licenses; and endorsements by prominent universities, cultural institutions, and authors. Lessig has made it a practice to fly in and deliver an inspirational speech. Few international launches of CC licenses have been more spectacular or consequential than the one staged by Brazil in March 2004.
Luiz Inácio Lula da Silva had just been elected president of Brazil, and he was eager to stake out a new set of development policies to allow his nation to plot its own economic and cultural future. His government, reflecting his electoral mandate, resented the coercive effects of international copyright law and patent law. To tackle some of these issues on the copyright front, President Lula appointed Gilberto Gil, the renowned singer-songwriter, as his minister of culture.
Gil became a revered cultural figure when he helped launch a new musical style, tropicalismo, in the late 1960s, giving Brazil a fresh, international cachet. The music blended national styles of music with pop culture and was inflected with political and moral themes. As one commentator put it, tropicalismo was “a very ’60s attempt to capture the chaotic, swirling feel of Brazil’s perennially uneven modernization, its jumble of wealth and poverty, of rural and urban, of local and global. . . . They cut and pasted styles with an abandon that, amid today’s sample-happy music scene, sounds up-to-theminute.”
This history matters, because when Gil was appointed culture minister, he brought with him a rare political sophistication and public veneration. His moral stature and joyous humanity allowed him to transcend politics as conventionally practiced. “Gil wears shoulder-length dreadlocks and is apt to show up at his ministerial offices dressed in the simple white linens that identify him as a follower of the Afro-Brazilian religion candomblé,” wrote American journalist Julian Dibbell in 2004. “Slouching in and out of the elegant Barcelona chairs that furnish his office, taking the occasional sip from a cup of pinkish herbal tea, he looks — and talks — less like an elder statesman than the posthippie, multiculturalist, Taoist intellectual he is.”
As luck had it, Dibbell — author of the article on cyber-rape that had enticed Lessig to investigate digital culture in the first place (see chapter 3) — was living in Rio at the time. He was friendly with Hermano Vianna, a prominent intellectual who knew Gil and was deeply into the music scene and digital technology. Between Dibbell and Vianna, a flurry of introductions was made, and within months Larry Lessig, John Perry Barlow, and Harvard law professor William Fisher were sitting with Gil, Vianna, and Dibbell in Gil’s Rio de Janeiro penthouse across from the beach.
“Gil knew that sampling was a central driving power for contemporary creativity well before digital instruments came along,” recalled Vianna. “Tropicalismo was all about sampling different ideas and different cultures. Tropicalismo was about juxtapositions, not fusions, and in this sense was heir to a long tradition of Brazilian modern thought and art that began with the cultural anthropology of the early modernists, in the 1920s and 1930s, and can be traced back to all debates about Brazilian identity in the 20th century.”
Lessig did not need to argue his case. Gil immediately understood what Creative Commons was trying to accomplish culturally and politically. He was enthusiastic about CC licenses, the proposed Sampling license, and the prospect of using his ministry to advance a vision of free culture.
By further coincidence, Ronaldo Lemos da Silva, then a Brazilian law student who has been described as a “Lessig of the Southern Hemisphere,” had just completed his studies at Harvard Law School. He was well acquainted with Creative Commons and was considering his future when friends at the Fundação Getulio Vargas (FGV), a Rio de Janeiro university, urged him to join them in founding a new law school. The school would host a new Center for Technology and Society to study law and technology from the perspective of developing nations like Brazil. Lemos accepted, and the center soon became the host for CC Brazil and myriad free culture projects.
This alignment of intellectual firepower, artistic authority, and political clout was extraordinary — and a major coup for Creative Commons. The culture minister of the world’s fifth-largest country and tenth-largest economy — whose own forty-year career was based on a remix sensibility — became a spirited champion of the CC licenses and free culture. Unlike most culture ministers, who treat culture chiefly as an aesthetic amenity, Gil took the economic and technological bases of creativity seriously. He wanted to show how creativity can be a tool for political and cultural emancipation, and how government can foster that goal. It turned out that Brazil, with its mix of African, Portuguese, and indigenous cultures and its colorful mix of vernacular traditions, was a perfect laboratory for such experimentation.
One of the first collaborations between Creative Commons and the Brazilian government involved the release of a special CC-GPL license in December 2003.
When the full set of CC Brazil licenses was finally launched— at the Fifth International Free Software Forum, in Port Alegre on June 4, 2004 — it was a major national event. Brazilian celebrities, government officials, and an enthusiastic crowd of nearly two thousand people showed up. Gil, flying in from a cabinet meeting in Brasília, arrived late. When he walked into the auditorium, the panel discussion under way immediately stopped, and there was a spontaneous standing ovation.
Gil originally planned to release three of his songs under the new CC Sampling license — dubbed the “Recombo” license — but his record label, Warner Bros., balked. He eventually released one song, “Oslodum,” that he had recorded for an indie label. “One way to think about it,” said Brown, “is that now, anybody in the world can jam with Gilberto Gil.”
As culture minister, Gil released all materials from his agency under a CC license, and persuaded the Ministry of Education as well as Radiobrás, the government media agency, to do the same. He also initiated the Cultural Points (Pontos de Cultura) program, which has given small grants to scores of community centers in poor neighborhoods so that residents can learn how to produce their own music and video works. Since industry concentration and payola make it virtually impossible for newcomers to get radio play and commercially distribute their CDs, according to many observers, the project has been valuable in allowing a fresh wave of grassroots music to “go public” and reach new audiences.
For developing countries, the real challenge is finding ways to tap the latent creativity of the “informal” economy operating on the periphery of formal market systems. Brazil is rich with such creative communities, as exemplified by the flourishing tecnobrega music scene in the northeast and north regions of Brazil. Ronaldo Lemos says that tecnobrega — “a romantic sound with a techno-beat and electronica sound”
Lemos believes the CC licenses are an important tool for helping grassroots creativity in Brazil to “go legitimate.” He explains, “Creative Commons provides a simple, non-bureaucratic structure for intellectual property that might help to integrate the massive marginal culture that is arising in the peripheries, with the ‘official,’ ‘formal’ structures of the Brazilian economy.”
Since its launch in June 2004, Lemos and the CC Brazil office have instigated a number of projects to demonstrate how sharing and collaboration can spur economic and cultural development. They have promoted free software and open business models for music and film and started collaborations with allies in other developing nations. Nigerian filmmakers inspired the People’s Cinema in Brazil, a project to help people use audio-video technology to produce their own films and develop audiences for them. The culture-livre (free culture) project, a joint effort of Creative Commons in Brazil and South Africa, is using the ccMixter software to encourage young musicians to mix traditional African instruments with contemporary sensibilities, and launch their careers.
In Brazil, there are open-publishing projects for scientific journals;
“Cultural production is becoming increasingly disconnected from traditional media forms,” said Lemos, because mass media institutions “are failing to provide the adequate incentives for culture to be produced and circulated. . . . Cultural production is migrating to civil society and/or the peripheries, which more or less already operate in a ‘social commons’ environment, and do not depend on intellectual property within their business models.”
As more people have adopted legal modes of copying and sharing under CC licenses, it is changing the social and political climate for copyright reform. Now that CC Brazil can cite all sorts of successful free culture ventures, it can more persuasively advocate for a Brazilian version of the fair use doctrine and press for greater photocopying privileges in educational settings (which are legally quite restrictive).
Although the CC licenses are now familiar to many Brazilians, they have encountered some resistance, mostly from lawyers. “Among all other audiences — musicians, artists, writers — they were extremely well received,” said Lemos. When he presented the CC licenses to an audience of three hundred lawyers, however, he recalls that a famous law professor publicly scoffed: “You’re saying this because you’re young, foolish, and communist.” Three years later, Lemos discovered that the professor was using his intellectual property textbook in her class.
As a unique global ambassador of creative sharing, Gilberto Gil did a lot to take the CC licenses to other nations and international forums such as the World Intellectual Property Organization. The day before his 2004 benefit concert for the Creative Commons in New York City with David Byrne, Gil delivered a powerful speech explaining the political implications of free culture:
A global movement has risen up in affirmation of digital culture. This movement bears the banners of free software and digital inclusion, as well as the banner of the endless expansion of the circulation of information and creation, and it is the perfect model for a Latin-American developmental cultural policy (other developments are possible) of the most anti-xenophobic, anti-authoritarian, anti-bureaucratizing, anti-centralizing, and for the very reason, profoundly democratic and transformative sort.
The Brazilian government was making digital culture “one of its strategic public policies,” Gil said, because “the most important political battle that is being fought today in the technological, economic, social and cultural fields has to do with free software and with the method digital freedom has put in place for the production of shared knowledge. This battle may even signify a change in subjectivity, with critical consequences for the very concept of civilization we shall be using in the near future.”
To advance this new paradigm, Gil, who left his post as culture minister in 2008, called for the rise of “new creative mestizo [hybrid] industries” that break with the entrenched habits of the past. Such businesses “have to be flexible and dynamic; they have to be negotiated and re-negotiated, so that they may contemplate the richness, the complexity, the dynamism and the speed of reality itself and of society itself, without becoming impositions.”
When it comes to free culture, Brazil is clearly a special case. But citizens in more than seventy nations have stepped forward to build a CC presence in their societies. Each has shown its own distinctive interests.
Tomislav Medak, a philosopher by training and a copyfighter by circumstance, runs the Multimedia Institute in Zagreb, Croatia, a cultural center that consists mostly of a performance space, a lounge, and a café. The organization survives on donations from the likes of George Soros’s Open Society Institute, but it thrives because it is the gathering place for an avant-garde corps of electronic musicmakers, publishers, performers, and hackers. Mainstream Croats would probably describe the community as a bunch of “cyberSerbian-gay-Communists,” said Medak, which he concedes is not inaccurate.
The Multimedia Institute was understandably excited when it learned about Creative Commons and Lessig’s vision of free culture. With help from some lawyer friends, the institute in January 2004 ported the CC licenses to Croatian law, primarily as a way to empower artists and counteract the dominance of corporate media and expansive copyright laws. “We are a country where the IP framework is very young, and most of the policies are protection-driven. Most policies are dictated by official institutions that just translate international documents into local legislation,” Medak said.
“In the post-socialist period,” said Medak, “our society has been hugely depleted of the public domain, or commons. The privatization process and the colonizing of cultural spaces have been blatant over the last couple of years, especially in Zagreb. So the Creative Commons has fit into a larger effort to try to recapture some of those public needs that were available, at least ideologically, in socialist societies. Now they are for real.”
In Scotland, government and other public-sector institutions have been huge fans of the CC licenses. In fact, museums, archives, and educational repositories have been the primary advocates of the CC Scotland licenses, says Andrés Guadamuz, a law professor at the Research Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh. “People who want to try to share information in the public sector are turning to Creative Commons because they realize that here is a license that is already made.”
The BBC was a pioneer in making its archived television and radio programs available to the public for free. In 2003, inspired by the CC licenses, the BBC drafted its own “Creative Archive” license as a way to open up its vast collection of taxpayer-financed television and radio programs.
The CC licenses have proven useful, also, to the British Museum and National Archives. In 2004, these and other British educational institutions were pondering how they should make their publicly funded digital resources available for reuse. A special government panel, the Common Information Environment, recommended usage of the CC licenses because they were already international in scope. The panel liked that the licenses allow Web links in licensed materials, which could help users avoid the complications of formal registration. The panel also cited the virtues of “human readable deeds” and machine-readable metadata.
As it happened, a team of Scottish legal scholars led by a private attorney, Jonathan Mitchell, successfully ported the licenses and released them a few months later, in December 2005. The Scottish effort had been initiated a year earlier when Mitchell and his colleagues objected that the U.K. CC licenses then being drafted were too rooted in English law and not sufficiently attuned to Scottish law. Since the introduction of the CC Scotland licenses, publicsector institutions have enthusiastically embraced them. Museums use the licenses on MP3 files that contain audio tours, for example, as well as on Web pages, exhibition materials, and photographs of artworks. Interestingly, in England and Wales, individual artists and creative communities seem to be more active than public-sector institutions in using the licenses.
The use of CC licenses for government information and publicly funded materials is inspiring similar efforts in other countries. Governments are coming to realize that they are one of the primary stewards of intellectual property, and that the wide dissemination of their work — statistics, research, reports, legislation, judicial decisions — can stimulate economic innovation, scientific progress, education, and cultural development. Unfortunately, as Anne Fitzgerald, Brian Fitzgerald, and Jessica Coates of Australia have pointed out, “putting all such material into the public domain runs the risk that material which is essentially a public and national asset will be appropriated by the private sector, without any benefit to either the government or the taxpayers.”
In the United States, the National Institutes of Health has pursued a version of this policy by requiring that federally funded research be placed in an open-access archive or journal within twelve months of its commercial publication. The European Commission announced in 2007 that it plans to build a major open-access digital repository for publicly funded research.
In 2005, about two years after the launch of CC International, twenty-one jurisdictions around the world had adopted the licenses. (A legal jurisdiction is not necessarily the same as a nation because places like Scotland, Puerto Rico, and Catalonia — which have their own CC licenses — are not separate nations.) Under a new director of CC International, copyright attorney Catharina Maracke, who took over the license-porting project in 2006, the pace of license adoption has continued. By August 2008, fortyseven jurisdictions had ported the CC licenses, and a few dozen more had their projects under way. The CC affiliates have now reached a sufficient critical mass that they represent a new sort of international constituency for the sharing economy. The CC network of legal scholars, public institutions, artistic sectors, and Internet users is not just a motivated global community of talent, but a new sort of transnational cultural movement: a digital republic of commoners.
To be sure, some nations have more institutional backing than others, and some have more enthusiastic and active projects than others. CC Poland reported in 2006 that its biggest challenge was “a complete lack of financial and organizational support, in particular from our partner organization.”
Not surprisingly, the American CC licenses — a version of which was spun off as a generic license, as opposed to jurisdictionspecific licenses — are the most used. In a pioneering study of license usage in January 2007, Giorgos Cheliotis of Singapore Management University and his co-authors conservatively estimated that there were 60 million distinct items of CC content on the Internet — a sum that rose to 90 million by the end of 2007. Over 80 percent of these items use a license that is not jurisdiction-specific; the remaining 20 percent are spread among the thirty-three nations included in the study.
As a fledgling network, the international CC community is a rudimentary platform for change. Its members are still groping toward a shared understanding of their work and devising new systems of communication and collaboration. But a great deal of cross-border collaboration is occurring. A variety of free culture advocates have constituted themselves as the Asia Commons and met in Bangkok to collaborate on issues of free software, citizen access to government information, and industry antipiracy propaganda. CC Italy has invited leaders of neighboring countries— France, Switzerland, Austria, Croatia, and Slovenia — to share their experiences and work together. A CC Latin America project started Scripta, a new Spanish-language journal based in Ecuador, to discuss free software and free culture issues affecting the continent.
CC leaders in Finland, France, and Australia have published books about their licensing projects.
In the Netherlands, CC project lead Paul Keller engineered a breakthrough that may overcome the persistent objections of European collecting societies to CC-licensed content. Collecting societies in Europe generally insist that any musician that they represent transfer all of their copyrights to the collective. This means that professional musicians cannot distribute their works under a CC license. Artists who are already using CC licenses cannot join the collecting societies in order to receive royalties for commercial uses of their works. In this manner, collecting societies in many European nations have effectively prevented many musicians from using the CC licenses.
In 2007, however, CC Netherlands negotiated a one-year pilot program with two Dutch collecting societies, Buma and Stemra, to let artists use CC NonCommercial licenses for parts of their repertoire.
One of the boldest experiments in the CC world was the creation of the Developing Nations license, launched in September 2004. A year earlier, Lessig had approached James Love, the director of Knowledge Ecology International (previously the Consumer Project on Technology), to ask him to craft a CC license that might help developing countries. Love proposed that the CC offer a “rider” at the end of its existing licenses so that people using the licenses could exempt developing nations from, say, the NonCommercial or NoDerivatives license restrictions. So, for example, if a textbook author wanted to let developing nations copy her book for either commercial or noncommercial purposes, she could add a rider authorizing this practice.
Love was trying to do for books and journal articles what is already possible for drugs — the legalization of a commercial market for generic equivalents. Love had seen how generic drugs could reach people only because for-profit companies were able to produce and sell the drugs; nonprofit or philanthropic distribution is just not powerful enough. But the market for generic drugs is possible only because of laws that authorize companies to make legal knockoffs of proprietary drugs once the patent terms expire. Love hoped to do the same via a Developing Nations license for copyrighted works: “It would create an opportunity for the publishing equivalent of generic drug manufacturers who make ‘generic’ books. In developing countries, you have whole libraries full of photocopied books. You would not have libraries there if people didn’t engage in these practices.”
In the end, Creative Commons offered the Developing Nations license as a separate license, not a rider. It had simple terms: “You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work)” — and the license was valid only in non–high income nations, as determined by United Nations’ statistics. Although the release of the license got considerable press coverage, actual usage of the license was extremely small. The most prominent use was totally unexpected — for architectural designs. Architecture for Humanity, a California nonprofit, used the license for its designs of low-cost housing and health centers. The organization wanted to give away its architectural plans to poor countries while not letting its competitors in the U.S. use them for free.
The expected uses of the Developing Nations license never materialized. In 2006, Love said, “The license is there, but people who might be willing to use it are not really aware of it.” He worried that the license “hasn’t really been explained in a way that would be obvious to them,” and ventured that there may be “a need for a re-marketing campaign.” By this time, however, the license had attracted the ire of Richard Stallman for its limitations on “freedom.”
The controversy that grew up around the Developing Nations license illuminates the different approaches to movement building that Lessig and Stallman represent. Lessig’s advocacy for free culture has been an exploratory journey in pragmatic idealism; Stallman’s advocacy for free software has been more of a crusade of true believers in a core philosophy. For Stallman, the principles of “freedom” are unitary and clear, and so the path forward is fairly self-evident and unassailable. For Lessig, the principles of freedom are more situational and evolving and subject to the consensus of key creative communities. The flexibility has enabled a broad-spectrum movement to emerge, but it does not have the ideological coherence of, say, the free software movement.
Several factors converged to make it attractive for Creative Commons to revoke the Developing Nations license. Some people in the open-access publishing movement disliked the license because it did not comply with its stated standards of openness. In addition, Richard Stallman’s increasingly strident objections to Creative Commons licenses were starting to alarm some segments of the “free world.” What if Internet content became Balkanized through a series of incompatible licenses, and the movement were riven with sectarian strife? Stallman objected not only to the Developing Nations license, but to attempts by Creative Commons to get Wikipedia to make its content, licensed under the GNU Free Documentation license, compatible with the CC licenses. By 2007 this dispute had been simmering for four years (see pages 212–217).
Finally, many CC staff members regarded the Developing Nations and Sampling licenses as misbegotten experiments. Fewer than 0.01 percent of uses of CC licenses at the time involved the Developing Nations license, and the Sampling license was used by a relatively small community of remix artists and musicians. If eliminating two little-used niche licenses could neutralize objections from the open access and free software movements and achieve a greater philosophical and political solidarity in the “free world,” many CC partisans regarded a rescission of the licenses as a modest sacrifice, if not a net gain.
In June 2007, Creative Commons announced that it was officially retiring the two licenses.
Anyone could still use the Sampling or Developing Nations license if they wished; they still exist, after all. It’s just that the Creative Commons no longer supports them. While the actual impact of the license revocations was minor, it did have major symbolic and political significance in the commons world. It signaled that the Creative Commons was capitulating to objections by free software advocates and the concerns of open access publishing activists.
As an international network of CC affiliates grew, it naturally spawned new pockets of activism. Lessig explained: “Once a country gets launched, it becomes a cell of activism. Sometimes it is very traditional — Creative Commons Korea is made up of a bunch of federal judges — and sometimes it is very radical — Creative Commons Croatia is made of up a bunch of real activists who want to change copyright. Creative Commons Poland, too, is a bunch of really smart law graduates. But then there is the artist community, on the other side, many of whom want to blow up copyright; they just think it is ridiculous.
“So the opportunity and problem we faced at that point,” said Lessig, “was, ‘Well, what are we going to do with these activists?’ Because Creative Commons wanted to facilitate activism, of course, but it wasn’t as if we could bring activism into our core because it would make it more suspect.”
The first steps toward organizing this protocommunity of activists came in March 2005, when eighty people from the various international licensing projects convened in Boston to talk about their shared challenges.
Here again was the tension between “the movement” and “the machine.” As neutral stewards of the licenses, the CC affiliates could not become full-throated advocates of a new international free culture movement. Their mission was preserving the integrity and utility of the licenses for all users, not advocacy. To avoid this problem, the Creative Commons, with an infusion of seed money and CC leaders, in 2006 started a new nonprofit organization, iCommons.
iCommons, a registered charity in the United Kingdom, is led by Heather Ford, a South African who met Lessig at Stanford and went back to her country to evangelize the Creative Commons licenses. Working out of Johannesburg, Ford is the activist counterpart to her Berlin licensing colleagues. She is a gregarious, spirited organizer who keeps tabs on activist gambits in dozens of nations and pulls together annual iCommons “summits.”
The iCommons conferences are something of a staging area for a new type of global citizenship in the digital “free world.” The first conference, in Rio de Janeiro in June 2006, attracted more than three hundred commoners from fifty nations.
From Japan, there were anime artists who are into remixes. From South Africa, print-on-demand research publishers. A bare-chested Brazilian guitarist traded thoughts about copyright law with a Zagreb performer. An Amsterdam hacker with a punk t-shirt shared a smoke with an American academic. From India, there was Lawrence Liang, founder of the Alternative Law Forum, a leading intellectual about copyright law and economic and social inequality. From Syria, there was Anas Tawileh, who is working to produce the Arab Commons, a directory of Arabic works released under any of the CC licenses. He hopes it will counteract “the weak representation of the Arabic language on the Internet, the shallow nature of Arabic content currently available and the consumption rather than the production of knowledge.” From the United States, there was Michael Smolens, an entrepreneur who started dotSUB, a captioning system to make any film available in any language.
The convergence of so many players in the nascent sharing economy, assembled in the flesh, was a bracing glimpse into a new kind of cosmopolitan, democratic sensibility. The program organizers stated their aspirations this way: “How do we help one another to build a commons that nurtures local communities while respecting the needs of others? How can we move towards the growth of a ‘Global Commons Community’?”
Although most international commoners seem to be culturally progressive and politically engaged, they cannot be situated along a left-right ideological spectrum. This is because commoners tend to be more pragmatic and improvisational than ideological. They are focused on building specific projects to facilitate sharing and creativity, based on open-source principles. Their enthusiasm is for cool software, effective legal interventions, and activist innovations, not sectarian debate.
It is not as if politics has been banished. For example, some critics have questioned the “elite” origins and governance structure of iCommons, which was hatched by CC board members and leaders. David Berry, a free culture advocate who teaches at the University of Sussex, complained on a listserv that iCommons was “creating a corporate machine rather than a democratic one.”
When pressed at the 2006 iCommons Summit to develop more formal organizational structure, Lessig begged off for the time being, saying that “trust and faith in each other” was a better approach than rigid rules and system. “We need a recognition that we have a common purpose. Don’t tell me that I need to tell you what that is, because we’ll never agree, but we do have a common purpose.”
The encounter nicely captures the quandaries of leadership and governance in the networked environment. How can the effectiveness and clarity of leadership be combined with networked participation and the legitimacy that it provides? How should an organization draw philosophical boundaries to define itself while remaining open to new ideas? How should participation in online collectives be structured to generate collective wisdom and legitimacy and avoid collective stupidity and bureaucratic paralysis? In this case, iCommons diversified its governance in late 2007. It invited the Free Software Foundation Europe, Computer Professionals for Social Responsibility, and Instituto Overmundo, a Brazilian nonprofit dedicated to cultural diversity, to join Creative Commons as full-fledged partners in managing the organization. Despite its broadened leadership, iCommons remains more of a convener of annual forums and discussion host than the democratically sanctioned voice of an international movement.
This is not surprising. The international commons community is still a fledgling enterprise trying to forge an identity and agenda. The resources for many CC affiliates are quite modest and the bonds of cooperation remain rudimentary. That said, the international explosion of free culture projects, above and beyond the CC licenses themselves, is nothing short of remarkable. It represents a “vast, transnational mobilization in favor of digital freedom,” as Gilberto Gil put it. In the early stages of the viral spiral, no one could have imagined that a corps of passionate, self-selected volunteers cooperating through the Internet could accomplish so much. And it continues, unabated.
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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