PART II

The Rise of Free Culture

9 THE MANY FACES OF THE COMMONS

As the “free world” grows and diversifies, so does debate over how to build the commons.

As the Creative Commons insinuated itself into one creative sector after another, and throughout dozens of nations, the variety of licenses proliferated. By one count in 2006, there were once eighteen distinct CC licenses, not counting version changes.~[* The eighteen licenses once offered include the core six licenses; a nonattribution version of five of those six licenses (now retired); three sampling licenses (one of which has been retired); the Developing Nations license (now retired); and a public domain dedication (which is otherwise not possible under copyright statutes). There was also a “Music Sharing license,” which was just another name for the Attribution-NonCommercial-No Derivatives license, and a “Founders’ Copyright,” which is not a license but a contract between an author and Creative Commons to place a particular work in the public domain after fourteen years (or twenty-eight years, if the author opts for a fourteen-year extension)]~ In the meantime, other parties were offering their own licenses. While the Creative Commons licenses had become the most-used licenses on the Internet, many people were choosing to use Free Software Foundation licenses for text (the GNU Free Documentation License, or FDL), the European Art Libre license, and special licenses that various institutions have devised for the arts, music, and educational works.

In theory, a proliferation of licenses is not a bad thing. By the lights of free-market economics and complexity theory, in fact, the best way to identify the most useful licenses is to introduce a variety of them and then let them compete for supremacy. Let natural selection in an ecosystem of licenses cull the losers and elevate the most useful ones.

Unfortunately, this libertarian vision of diverse licenses competing for supremacy in the cultural ecosystem can run up against a harsh reality of the Internet. Too many disparate licenses may make it harder for people to share content in an easy, interoperable way. It is not the proliferation of licenses per se that is problematic, it is the absence of a mechanism to enable differently licensed works to “play together” so that they can commingle and be used to produce new things. If bodies of works released under a CC license cannot be combined with works licensed under other licenses, it defeats one of the key value propositions of the Internet, easy interoperability and facile sharing and reuse. Despite its best intentions, license proliferation has the effect of “fencing off the commons,” because the different license terms keep different bodies of work in separate ghettos.

Incompatibility is a problem both within the suite of CC licenses and between CC licenses and other licenses. Within the CC suite of licenses, for example, a work licensed under the AttributionNonCommercial-ShareAlike license (BY-NC-SA) cannot legally be combined with a work licensed under the Attribution-No Derivatives license (BY-ND) or an Attribution-NonCommercial (BY-NC). The former license requires that any derivative works be licensed under the same license, period.

Some observers are not disturbed by the internal incompatibilities of the CC suite of licenses. They regard the different licenses as tools for various communities to build their own “subeconomies” of content, based on their own distinct needs and priorities. A scientist may not want his research articles altered or combined with other material. A musician may want to promote noncommercial usage on the Internet but retain commercial rights so that he can benefit from any CD sales. Not all creative sectors want to distribute their work in the same ways.

The incompatibility between CC-licensed work and other freecontent licenses is arguably more problematic. At a conference in Spain in the summer of 2005, Lessig recalls having a “Homer Simpson moment” — D’oh! — when he realized where license proliferation was heading. The incompatibility of licenses, and therefore bodies of content, could lead to an irretrievably fragmented universe of content. Lessig saw license proliferation as analogous to the Balkanization of technical standards that once plagued mainframe computing. IBM computers couldn’t communicate with DEC, which couldn’t communicate with Data General. ³⁰³ “The legal framework of the licensing world is basically a pre-Internet framework,” said Lessig in 2007. “We don’t have interoperability at the layer of legal infrastructure.” ³⁰⁴

In my view [said Lessig], there’s a critical need for the free culture movement to achieve interoperability. And until it achieves interoperability, there’s a huge problem — because we’re creating these kinds of autistic islands of freedom. Basically, the stuff produced in the Wikimedia world is free, but can only be used in the Wikimedia world; the stuff created in the Creative Commons world is free, but can only be used in the Creative Commons world — and never the two will meet. That’s very destructive, because what we want is a kind of invisible platform of freedom that everybody can then build on. It’s been my objective from the very beginning to find the way to assure that we would get that platform. ³⁰⁵

A critic might call it “the revenge of choice” — the inevitable outcome of a neoliberal philosophy that privileges individualism and choice, rather than a collective concern for the commons. This is the view of Niva Elkin-Koren, a law professor at the University of Haifa (which coincidentally is the host of CC Israel). Elkin-Koren argues that the Creative Commons is replicating and reinforcing property rights discourse and failing to advance the cause of copyright reform. Because the Creative Commons is plagued by an “ideological fuzziness” that does not adequately set forth a philosophical vision of freedom or the commons, Elkin-Koren believes the CC project threatens to “spread and strengthen the proprietary regime in information.” ³⁰⁶

This critique was at the heart of one of the most serious internecine squabbles in the movement, the struggle to make Wikipedia content — licensed under the Free Software Foundation’s GNU Free Documentation License — compatible with CC-licensed content. The failure to find a solution, after four years of negotiation, threatened to keep two great bodies of Internet content from legally commingling and cause further fragmentation of open content.

There are other controversies. Anticapitalist leftists periodically take the Creative Commons to task for being too politically respectable. Friendly voices from underdeveloped nations of the Southern Hemisphere have raised alarms that the public domain is just another excuse for corporate exploitation of their resources. Others from the South argue that the informal, social commons inhabited by poor people — the “nonlegal commons” — deserve respect, too. And then there are copyright traditionalists, who believe that a redoubled effect to fortify the fair use doctrine should be a top priority.

For the most part, the general public is oblivious to these internecine disputes. Who cares about the relative merits of using a GNU Free Documentation License for Wikipedia entries instead of a Creative Commons license? The layperson may not understand the long-term implications of vesting individual authors with the choice of how to share a work (in the style of the Creative Commons) as opposed to vesting communities of practice with those rights (in the style of the Free Software Foundation’s General Public License). Yet tech sophisticates realize that, in the context of the Internet, uninformed choices today can have serious practical consequences tomorrow. The terms of a license or the design of a software application or digital appliance can prevent people from sharing or reusing works. Bodies of content may become legally incompatible. Consumer freedoms to innovate and distribute may be limited. And then there are second-order questions that have great symbolic importance within the movement, such as, Whose vision of “freedom” in digital spaces shall we endorse? What is philosophically desirable and consistent?

For a movement that aspires to simplify copyright law, the free culture movement has gotten embroiled in knotty debates that might give lawyers headaches. It is not easy to tell if the disputants are persnickety zealots who have spent too much time in front of their screens or latter-day Jeffersons, Madisons, and Hamiltons— brilliant thinkers who are astute enough to understand the longterm implications of some difficult issues and passionate enough to take a stand. One person’s arcana can be another person’s foundational principle, and one person’s quest for intellectual clarity is another person’s distraction from the messy challenges of building a movement.

That is the basic problem of the crazy-quilt network that constitutes the free world. There are, in fact, so many divergent, sometimes competing, sometimes congruent agendas that it can be difficult to orchestrate them into a single, harmonious song. For better or worse, the passions that animate culture jammers, copyright reformers, hackers, law scholars, artists, scientists, and countless others in seventy-plus countries are widely divergent. Although the intramovement disagreements may sometimes seem gratuitous, sectarian, and overblown, they are, in fact, understandable. The commoners tend to see their projects as part of a larger, ennobling enterprise— the construction of a new democratic polity and cultural ecology. It makes sense to fret about the technical, legal, and philosophical details when so much is potentially at stake.

Individual Choice Versus the Commons

It turns out that overcoming license incompatibilities is not such an easy task. Any attempt to bridge differences immediately runs into mind-bending legal complexities. Crafting new licensing language can trigger philosophical disagreements, some of which may be proxies for turf issues and personal control. One of the major philosophical disagreements involves the one raised by Elkin-Koren: the merits of individual choice versus the commons. Should individuals be allowed to choose how their work may circulate in the wider world, or is such legal partitioning of culture an affront to the value proposition of the commons and its sharing ethic? Why should the choices of individual creators be privileged over the creative needs of the general culture?

The question is a divisive one. The answer that you give, Yochai Benkler of Harvard Law School told me, “depends on whether you think that what you’re doing is building a political movement or whether you’re building a commons that has narrower appeal, but is potentially, more functionally unitary.” ³⁰⁷ A movement is about building a “big tent,” he said — a vision that accommodates many different types of people with different preferences. If you are building a movement, then you will use terminologies that are attractive to a very broad range of liberal and illiberal conceptions of choice, he said.

But a commons — of the sort that Richard Stallman’s GPL enables for software code — requires that its members honor a community’s social and moral priorities. A commons does not cater to individual preferences; its first priority is to advance the shared goals and relationships of the community. A commons is not oblivious to the self-interest of individuals. It just fulfills that self-interest in a different way. A commons does not confer benefits through individual negotiations or transactions, but instead through an individual’s good-faith participation in an ongoing, collective process. There is no individual quid pro quo, in other words. A person’s contributions accrue to the collective — and benefits flow from belonging to that collective. This is not an exotic or communistic model; it more or less resembles a scientist’s relationship with his research discipline. In the style of a gift economy, a scientist’s articles and lectures are gifts to the discipline; in return, he enjoys privileged access to his colleagues and their research.

It is worth noting that a commons does not necessarily preclude making money from the fruit of the commons; it’s just that any commercial activity cannot interfere with the integrity of social relationships within the commons. In the case of GPL’d software, for example, Red Hat is able to sell its own versions of GNU/Linux only because it does not “take private” any code or inhibit sharing within the commons. The source code is always available to everyone. By contrast, scientists who patent knowledge that they glean from their participation in a scientific community may be seen as “stealing” community knowledge for private gain. The quest for individual profit may also induce ethical corner-cutting, which undermines the integrity of research in the commons.

Ironically, the Creative Commons is not itself a commons, nor do its licenses necessarily produce a commons in the strict sense of the term. The licenses are tools for creating commons. But the tools do not require the creation of a commons (unlike the GPL). In this sense, a commons of CC-licensed content may be a “lesser” type of commons because it may have restrictions on what content may be shared, and how. The choices of individual authors, not the preexisting claims of the community, are considered paramount.

Is one type of commons superior to the others? Does one offer a superior vision of “freedom”? This philosophical issue has been a recurrent source of tension between the Free Software Foundation, the steward of the GPL, and the Creative Commons, whose licenses cater to individual choice.

Strictly speaking, a commons essentially offers a binary choice, explained Benkler: “You’re in the commons or you’re out of the commons.” By broadening that binary choice, the CC licenses make the commons a more complicated and ambiguous enterprise. This is precisely what some critics like Stallman have found objectionable about certain CC licenses. They don’t necessarily help forge a community of shared values and commitments. Or as two British critics, David Berry and Giles Moss, have put it, the CC licenses create “commons without commonality.” ³⁰⁸

Inviting authors to choose how their work may circulate can result in different types of “commons economies” that may or may not be interoperable. ShareAlike content is isolated from NoDerivatives content; NonCommercial content cannot be used for commercial purposes without explicit permission; and so on. CC-licensed works may themselves be incompatible with content licensed under other licenses, such as the GNU Free Documentation License.

Freedom, the Commons, and Movement Building

The slightly confused layperson may ask, Why does all of this matter? The answer may depend on your commitment to the commons as a different (better?) way of creating value. Do you believe in individual freedom and choice, as conceived by contemporary liberal societies? Or do you believe in the different type of freedom that comes through participation in a community of shared values?

Does this state the choice too starkly, as an either/or proposition? Some believe that it does. Perhaps a broader taxonomy of commons is possible. Perhaps a commons can accommodate some measure of individual choice. Or is that an oxymoron?

These are pivotal questions. The answers point toward different visions of free culture and different strategic ideas about movement building. Is it enough to put forward a demanding, utopian ideal of the commons, and hope that it will attract a corps of true believers willing to toil away in the face of general indifference or hostility? This is essentially what Stallman has done. Or is it better to build a “coalition of the reasonable,” so that a more accessible, practical vision can gain widespread social acceptance and political traction in a relatively short period of time? This is the vision that drives Larry Lessig and his allies.

Some critics accuse Creative Commons of betraying the full potential of the commons because its licenses empower individual authors to decide how “shareable” their works can be. The licenses do not place the needs of the general culture or the commons first, as a matter of universal policy, and some licenses restrict how a work may be used. The lamentable result, say critics like Niva Elkin-Koren, is a segmented body of culture that encourages people to think of cultural works as property. People internalize the norms, such as “This is my work and I’ll decide how it shall be used by others.”

This can be seen in the actual choices that CC licensors tend to use. Some 67 percent of CC-licensed works do not allow commercial usage. ³⁰⁹ Arguments go back and forth about whether the NC restriction enhances or shrinks freedom. Many musicians and writers want to promote their works on the Internet while retaining the possibility of commercial gain, however remote; this would seem a strike for freedom. Yet critics note that the NC license is often used indiscriminately, even when commercial sales are a remote possibility. This precludes even modest commercial reuses of a work, such as reposting of content on a blog with advertising. ³¹⁰

The larger point of criticism is that the Creative Commons licenses do not “draw a line in the sand” about what types of freedoms are inherent to the commons. In the interest of building a broad movement, Creative Commons does not insist upon a clear standard of freedom or prescribe how a commons should be structured.

“While ideological diversity may be crucial for the successes of a social movement,” observed Elkin-Koren, “it may impair attempts to make creative works more accessible. The lack of a core perception of freedom in information, may lead to ideological fuzziness. This could interfere with the goal of offering a workable and sustainable alternative to copyright.” ³¹¹ In an essay that offers “a skeptical view of a worthy pursuit,” Elkin-Koren says that the CC regime encourages narrow calculations of self-interest and the same attitudes toward property and individual transactions as the market economy; it does not promote a coherent vision of “freedom” that fortifies the commons as such.

“The normative message that we communicate by using Creative Commons licenses is the strategy of choice,” Elkin-Koren told me. “You’re the owner, you’re the author, and therefore, you are entitled to govern your work. . . . No one tells you that maybe it’s wrong; maybe you should allow people to use your work.” By using the CC licenses, she continued, we internalize these norms. “We are teaching ourselves and others that our works are simply commodities, and like every other commodity, everyone has to acquire a license in order to use it.” ³¹²

But champions of the Creative Commons licenses celebrate their approach as a pragmatic and effective way to break free from the stifling “all rights reserved” ethic of copyright law. Historically, of course, not much else has been successful in challenging copyright norms — which is precisely why Lessig and others find the CC strategy attractive. “If I believed that there was a different discourse that had political purchase in someplace other than tiny corners of law faculty commons rooms, I’d be willing to undertake it,” said Lessig. He concedes that his viewpoint may be affected by his living in the United States instead of Israel (where Elkin-Koren lives) but, in the end, he considers the Creative Commons as “just my judgment about what’s going to be effective.” ³¹³

The Splintering of the Free World?

At one point, the philosophical disagreements between the Creative Commons and its critics did not matter so much. There was enough shared purpose and common history that everyone could agree to disagree. And since the project was still young, the stakes were not so high. But then it became clear that the CC licenses would be quite popular indeed. When the Creative Commons issued its Developing Nations and Sampling licenses in 2003, it brought Richard Stallman’s simmering dissatisfaction with the organization to a boil, threatening a serious schism. Pointing to the “four freedoms” that define the free software movement, Stallman criticized the new CC licenses as “not free” because they do not allow universal copying of a work.

Stallman objected to the Sampling license because, while it allowed a remix of a licensed work, it did not allow the freedom to share it. The Developing Nations license was objectionable because its freedoms to copy are limited to people in the developing world, and do not extend to everyone. Stallman also disliked the fact that the CC tag that licensors affix to their works did not specify which license they were using. With no clear standard of “freedom” and now a mix of licenses that included two “non-free” licenses, Stallman regarded the CC tag as meaningless and the organization itself problematic.

“I used to support Creative Commons,” said Stallman on his blog in July 2005, “but then it adopted some additional licenses which do not give everyone that minimum freedom, and now I no longer endorse it as an activity. I agree with Mako Hill that they are taking the wrong approach by not insisting on any specific freedoms for the public.” ³¹⁴

Mako Hill is a brilliant young hacker and Stallman acolyte who wrote a 2005 essay, “Towards a Standard of Freedom: Creative Commons and the Free Software Movement,” ³¹⁵ a piece that shares Elkin-Koren’s complaint about the CC’s “ideological fuzziness.” Then enrolled in a graduate program at the MIT Media Lab, Hill has written a number of essays on the philosophy and social values of free software. (When he was an undergraduate at Hampshire College, I was an outside advisor for his senior thesis and remain friends with him.)

In his “Freedom’s Standard” essay, Hill wrote: “[D]espite CC’s stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software’s success is built on an ethical position. CC sets no such standard.” While CC prides itself on its more open-minded “some rights reserved” standard, Hill says that a real movement for freedom must make a bolder commitment to the rights of the audience and other creators— namely, that “essential rights are unreservable.” ³¹⁶

By this, Hill means that certain essential freedoms should not be restricted by copyright law or any license. The problem with the CC licenses, argued Hill, is that they cannot commit to any “defined spirit of sharing” (emphasis in original). This is not the way to build a transformative, sustainable movement, said Hill. ³¹⁷

But what, then, about the choice of authors? Doesn’t that freedom count for anything? CC partisans have responded. Joi Ito, the chair of the Creative Commons, wrote in 2007, “CC is about providing choice. FSF is mostly about getting people to make their choice. I realize it’s not THAT clear-cut, but I think the point of CC is to provide a platform for choice. . . . I realize that we are headed in the same general free culture direction and many of us debate what choices should be allowed, but I think we are more ‘tolerant’ and support more diverse views than the FSF.” ³¹⁸

Lessig has argued many times that, just as the free software community decided for itself how its content ought to be distributed, so other artistic sectors — musicians, photographers, filmmakers, etc. — must make such decisions themselves. If they can’t have certain choices, then they will have little interest in joining a movement for free culture, said Lessig at the 23rd Chaos Communication Congress in Berlin. “We don’t have the standing to tell photographers or musicians what ‘freedom’ is.” Why should the Free Software Foundation, or any other group, be able to dictate to an artistic community how their works should circulate?

Elkin-Koren is not so sure we can segment the world according to creative sectors and let each determine how works shall circulate. “I don’t think we can separate the different sectors, as if we work in different sectors,” she told me. “We all work in the production of information. My ideas on copyright are really affected by the art that I use and the music that I listen to. . . . Information is essential not only for creating something functional or for selling a work of art, but for our citizenship and for our ability to participate in society. So it’s not as if we can say, ‘Well, this sector can decide for themselves.’” ³¹⁹

As Wikipedia began to take off in popularity, what might have been an unpleasant philosophical rift grew into a more serious fissure with potentially significant consequences. All Wikipedia content is licensed under the Free Software Foundation’s GNU Free Documentation License, or FDL, ³²⁰ largely because the CC licenses did not exist when Wikipedia was launched in 2001. The FDL, originally intended for the documentation manuals that explicate software applications, is essentially the same as the CC ShareAlike license (any derivative works must also be released under the same license granting the freedom to share). But using the FDL can get cumbersome, especially as more video, audio, and photos are incorporated into a text; each artifact would require that the license be posted on it. As more content is shared, the potential for misuse of the content, and lawsuits over violations of licensing agreements, would grow. ³²¹

Unfortunately, as a legal matter, the FDL is incompatible with the CC licenses. This means that all content on Wikipedia and its sister Wikimedia projects (Wikispecies, Wikiquote, Wikinews, among other projects) cannot legally be combined with works licensed under CC licenses. Angered by the two “non-free” CC licenses, Stallman dug in his heels and defended Wikipedia’s use of the FDL. He also made it clear that he would remain a critic of Creative Commons unless it revoked or changed its licenses to conform with the Free Software Foundation’s standards of “freedom.”

Thus began a four-year search for a resolution. Lessig recalled, “We started to think about a way that Wikimedia could migrate to a license that we would then deem as compatible to a Creative Commons license. That took two years of negotiation, basically.” One proposed solution was for Wikimedia projects to offer both licenses, the FDL and CC BY-SA, for the same work. However, it was determined that derivative works licensed under one license would still be incompatible with dual-licensed works, resulting in “project bleed” (new works would migrate away the existing corpus of works). Another approach was for a “one-way compatibility” of licenses, so that people creating works under the FDL could use CC-licensed content.

But Lessig realized that these solutions dealt only with the issue at hand; the real challenge was finding a more systemic solution. As various players engaged with the FDL/CC controversy, it grew from a licensing squabble into an intertribal confrontation. It became a symbol for everything that Stallman found politically unacceptable about the Creative Commons’s vision of freedom.

From 2005 to 2007, the issue roiled many factions within the free culture/free software communities. The debate and invective flew back and forth in various venues, and there were proposals, negotiations, and political maneuvers. MIT computer scientist (and CC board member) Hal Abelson rejoined the FSF board. Lessig and other CC staff entered into talks with the FSF general counsel, Eben Moglen. Wikipedia co-founder Jimmy Wales joined the Creative Commons board. Yet Stallman continued to resist, and the Wikimedia board would not approve any proposed solutions.

The stalemate was broken in June 4, 2007, when Lessig made a surprise announcement that the Creative Commons was “retiring” the Developing Nations and Sampling licenses. ³²² One reason was a lack of interest in the licenses: only 0.01 percent of CC licensors were using each license. But, without alluding to the Free Software Foundation or Stallman, Lessig also noted that the two licenses did not ensure a minimal freedom to share a work noncommercially— a standard met by all other CC licenses. In addition, Lessig pointed out to me, some publishers were beginning to see the Developing Nations license as a subterfuge to avoid meeting open-access publishing standards.

For Creative Commons, the revocation of the two licenses was at least a shrewd political move; it also affirmed a stricter standard of “freedom” in the ability to use digital materials. In return for sacrificing two little-used licenses, the organization gained Stallman’s eventual support for a deal that would let the FDL be treated as compatible with the CC ShareAlike license. This was a major triumph because it could avoid the contorted, legalistic solutions that had been previously proposed and rejected. It was also a breakthrough because it averted a major rift between two growing bodies of open content and avoided a slow drift into a wider Balkanization of content across the Internet. “I kind of thought that no matter what we did, Richard would find a reason to object,” recalled Lessig, “but he didn’t. He stuck to his principles, so I give credit to him.” ³²³

The debates about “freedom” produced several specific results. In November 2006, when Creative Commons released an updated legal version of its licenses, version 3.0, it formally recognized other licenses as legally compatible with the ShareAlike license if they have the same purpose, meaning, and effect, and if the other license recognizes the CC license. The move should help avoid future strife over interoperability.

A few months later, the Creative Commons also adopted a “Free Cultural Works” definition and seal as a way to recognize works that are “free,” as understood by the Free Software Foundation. The definition declares that works with either the CC Attribution or Attribution-ShareAlike licenses should be considered “free” because they give people the freedom to modify works without any discrimination against specific uses or users. The definition and seal exclude the CC NonCommercial and NoDerivatives licenses, however, because those licenses do not allow this sort of freedom. The purpose of the seal is not to denigrate use of the NC and ND licenses, but to educate users about the less restrictive licenses and to assert a philosophical solidarity with the free software community.

As part of this larger effort, the Creative Commons also issued a draft statement in April 2008 declaring the special importance of the ShareAlike license in the free culture movement and the organization’s intentions in its stewardship of the license. The statement amounted to a diplomatic peace treaty, to be finalized in the months ahead.

By May 2008 the details of the agreement to make Wikipedia’s entries, licensed under the FDL, legally compatible with materials licensed under the CC ShareAlike license had not been consummated. But it was expected that the legal technicalities would be ironed out, and two great bodies of open content would no longer be legally off-limits to each other.

Criticism from the Left and from the South

As the Creative Commons has grown in popularity, a longer line has formed to take issue with some of its fundamental strategies. One line of criticism comes from anticapitalist ideologues, another from scholars of the underdeveloped nations of the South.

British academics Berry and Moss apparently hanker for a more bracing revolution in culture;they object to the commodification of culture in any form and to the role that copyright law plays in this drama. To them, Lessig is distressingly centrist. He is “always very keen to disassociate himself and the Creative Commons from the (diabolical) insinuation that he is (God forbid!) anti-market, anticapitalist, or communist,” Berry and Moss complain. ³²⁴ The gist of their objection: Why is Lessig collaborating with media corporations and neoclassical economists when there is a larger, more profound revolution that needs to be fought? A new social ethic and political struggle are needed, they write, “not lawyers exercising their legal vernacular and skills on complicated licenses, court cases and precedents.”

Dense diatribes against the antirevolutionary character of Creative Commons can be heard in various hacker venues and cultural blogs and Web sites. The argument tends to go along the lines sketched here by Anna Nimus of Berlin, Germany:

Creative Commons preserves Romanticism’s ideas of originality, creativity and property rights, and similarly considers “free culture” to be a separate sphere existing in splendid isolation from the world of material production. Ever since the 18th century, the ideas of “creativity” and “originality” have been inextricably linked to an anti-commons of knowledge. Creative Commons is no exception. There’s no doubt that Creative Commons can shed light on some of the issues in the continuing struggle against intellectual property. But it is insufficient at best, and, at its worst, it’s just another attempt by the apologists of property to confuse the discourse, poison the well, and crowd out any revolutionary analysis. ³²⁵

To ensure that her revolutionary analysis gets out, Nimus released her piece under a self-styled “Anticopyright” notation, with the added phrase, “All rights dispersed.”

A more penetrating brand of criticism has come from the South, which fears that the West’s newfound enthusiasm for the commons may not necessarily benefit the people of developing nations; indeed, it could simply legitimate new thefts of their shared resources. In an important 2004 law review article, “The Romance of the Public Domain,” law professors Anupam Chander and Madhavi Sunder argue that “public domain advocates seem to accept that because a resource is open to all by force of law, that resource will indeed be exploited by all. In practice, however, differing circumstances — including knowledge, wealth, power and ability — render some better able than others to exploit a commons. We describe this popular scholarly conception of the commons as ‘romantic.’ . . . It is celebratory, even euphoric, about the emancipatory potential of the commons. But it is also naïve, idealistic and removed from reality.” ³²⁶

If genes, seeds, indigenous medicines, agricultural innovations, artistic designs, music, and the various ecological and cultural resources of the South are not treated as private property, but instead as elements of the public domain, then anyone can exploit them freely. This can lead to serious injustices, as powerful corporations swoop in to exploit resources that are available to all in the public domain.

Chander and Sunder write: “By presuming that leaving information and ideas in the public domain enhances ‘semiotic democracy’ — a world in which all people, not just the powerful, have the ability to make cultural meanings — law turns a blind eye to the fact that for centuries the public domain has been a source for exploiting the labor and bodies of the disempowered — namely, people of color, the poor, women and people from the global South.” ³²⁷ Chander and Sunder argue that the binary logic of copyright law — something is either private property or in the public domain — “masks the ways in which the commons often functions more in the interests of traditional property owners than in the interests of commoners.”

This critique makes clear why the distinction between the public domain and the commons matters. The public domain is an open-access regime available to all; it has no property rights or governance rules. The commons, however, is a legal regime for ensuring that the fruits of collective efforts remain under the control of that collective. The GPL, the CC licenses, databases of traditional knowledge, and sui generis national statutes for protecting biological diversity all represent innovative legal strategies for protecting the commons. The powerful can exploit and overwhelm the public domain, but they are not likely to overwhelm a commons that has a legal regime to protect a collective’s shared resources.

A more radical and profound critique of the commons came in an open letter to “inhabitants of the ‘legal’ Commons” from “Denizens of Non Legal Commons, and those who travel to and from them.” The three-page letter, drafted by Shuddhabrata Sengupta, a filmmaker and writer with the Raqs Media Collective in New Delhi, is a plea for recognizing the informal sharing economy that flourishes beneath the oblivious gaze of mainstream society, and certainly beyond the reach of property rights and law.

“Greetings!” the letter opens. “This missive arrives at your threshold from the proverbial Asiatic street, located in the shadow of an improvised bazaar, where all manner of oriental pirates and other dodgy characters gather to trade in what many amongst you consider to be stolen goods.” To this other commons, stolen goods are really “borrowed,” because nothing is really “owned” — and therefore nothing can be “stolen.” This is the realm of “the great circulating public library of the Asiatic street.” The letter continues:

We appreciate and admire the determination with which you nurture your garden of licenses. The proliferation and variety of flowering contracts and clauses in your hothouses is astounding. But we find the paradox of a space that is called a commons and yet so fenced in, and in so many ways, somewhat intriguing. The number of times we had to ask for permission, and the number of security check posts we had to negotiate to enter even a corner of your commons was impressive. . . . Sometimes we found that when people spoke of “Common Property” it was hard to know where the commons ended and where property began . . .

Strangely, the capacity to name something as “mine,” even if in order to “share” it, requires a degree of attainments that is not in itself evenly distributed. Not everyone comes into the world with the confidence that anything is “theirs” to share. This means that the “commons,” in your parlance, consists of an arrangement wherein only those who are in the magic circle of confident owners effectively get a share in that which is essentially, still a configuration of different bits of fenced in property. What they do is basically effect a series of swaps, based on a mutual understanding of their exclusive property rights. So I give you something of what I own, in exchange for which, I get something of what you own. The good or item in question never exits the circuit of property, even, paradoxically, when it is shared. Goods that are not owned, or those that have been taken outside the circuit of ownership, effectively cannot be shared, or even circulated. ³²⁸

The letter invites a deeper consideration of how humans form commons. However ingenious and useful the jerry-rigged legal mechanisms of the GPL and Creative Commons, the disembodied voice of the Non Legal Commons speaks, as if through the sewer grate, to remind us that the commons is about much more than law and civil society. It is part of the human condition. Yet the chaotic Asiatic street is not likely to yield conventional economic development without the rule of law, civil institutions, and some forms of legal property. The question posed by the informal commons remains a necessary one to ponder: What balance of commons and property rights, and in what forms, is best for a society?

Fair Use and the Creative Commons

Walk through the blossoming schools of commons thought and it quickly becomes clear that the commons is no monolithic ideal but a many-splendored mosaic of perspectives. To the befuddlement of conventional observers, the perspectives are not necessarily adversarial or mutually exclusive. More often than not, they are fractal— interesting variations of familiar commons themes. In our fascination with newfangled commons, it is easy to overlook a more traditionally minded defender of the commons: the champion of fair use. It is all well and good to promote works that are “born free” under CC licenses, say these friendly critics. But the hard fact of the matter is that for the foreseeable future, creators will still need access to copyrighted content — and this requires a strong fair use doctrine and aggressive public education.

It is a compelling argument, but in fact only an indirect criticism of Creative Commons. For filmmakers who need to use film clips from existing films and musicians who want to use a riff from another performer, the fair use doctrine is indeed more important than any CC license. Peter Jaszi, the law professor at American University’s Washington School of Law, believes that even with growing bodies of CC-licensed content, “teachers, filmmakers, editors, freelance critics and others need to do things with proprietary content.” As a practical matter, they need a strong, clear set of fair use guidelines.

Jaszi and his colleague Pat Aufderheide, a communications professor who runs the Center for Social Media at American University, have dedicated themselves to clarifying the scope and certainty of fair use. They have launched a major fair use project to get specific creative communities to define their “best practices in fair use.” If filmmakers, for example, can articulate their own artistic needs and professional interests in copying and sharing, then the courts are more likely to take those standards into consideration when they rule what is protected under the fair use doctrine. ³²⁹ A set of respectable standards for a given field can help stabilize and expand the application of fair use.

Inspired in part by a professional code developed by news broadcasters, some of the nation’s most respected filmmakers prepared the Documentary Filmmakers’ Statement of Best Practices in Fair Use, which was released in November 2005. The guidelines have since been embraced by the film industry, television programmers, and insurance companies (who insure against copyright violations) as a default definition about what constitutes fair use in documentary filmmaking. ³³⁰ Aufderheide and Jaszi are currently exploring fair use projects for other fields, such as teaching, as a way to make fair use a more reliable legal tool for sharing and reuse of works.

Lessig has been highly supportive of the fair use project and, indeed, he oversees his own fair use law clinic at Stanford Law School, which litigates cases frequently. “It’s not as if I don’t think fair use is important,” said Lessig, “but I do think that if the movement focuses on fair use, we don’t attract the people we need. . . . From my perspective, long-term success in changing the fundamental perspectives around copyright depends on something like Creative Commons as opposed to legal action, and even quasi-legal action, like the Fair Use Project.”

For Lessig, fair use is deeply flawed as the basis for building a political movement to reform copyright law. He argues that its advocates are dogged by the (unfair) perception that they are “just a bunch of people who want to get stuff for free, without paying for it. . . . It’s too easy to dismiss that movement.” Lessig recalled the time that the head of a major record label snorted, “Fair use is the last refuge of the scoundrel.” Fair use defenders obviously take issue with this characterization, but the accusation nonetheless pushes fair use champions into a rhetorical corner from which it is difficult to escape.

A more appealing alternative, Lessig argues, is to use the credibility of copyright ownership to argue the point in a different way. He cited the successful campaign by European software engineers in the 1980s to fight attempts to expand patent protection for software. Their campaign did not resemble “a bunch of peer-to-peer downloaders who are saying, ‘Yeah, I want my music for free,’” said Lessig. “It was a bunch of people who are the beneficiaries of patent rights saying, ‘Look, we don’t want these rights.’ That creates a kind of credibility.” From a moral and political standpoint, Lessig argued, a movement based on copyright owners declaring that they want to forfeit certain rights in order to share and promote creativity, has greater credibility than a campaign seeking to “balance” the public’s rights against private copyright privileges.

“I imagine a world where there are one hundred million Creative Commons–licensed artists out there, creating works according to Creative Commons views,” he said. Then, when Hollywood pressures Congress for stronger copyright protections, he said, “there would be all these people out there who are creating according to a radically different model. [Hollywood’s] claims about extremism would just not be true for a large number of creators.” Instead of a copyright debate that pits “creators” against “pirates,” Lessig said, “I want to create this world where there is a third category of people who are creators, but who create according to different values, values that emphasize the importance of sharing and building upon the past.” ³³¹

In the larger scheme of things, the tensions between the fair use and free culture advocates are not mutually exclusive. In the end, the two approaches complement each other with different contributions. Both seek to promote sharing and reuse, but the former works within the traditional framework of copyright law; the latter is trying to build a whole new body of culture and discourse. There is a kind of gentleman’s agreement between the fair use and free culture communities to work on different sides of the street, while traveling a parallel path down the same road.

For Lessig, there is little advantage in shirking the property rights discourse of copyright law, as Elkin-Koren and the “Non Legal Commons” urge. Indeed, he sees a distinct strategic advantage in embracing that discourse — and then trying to turn it to different ends. This, in a way, is what Stallman succeeded in doing with the GPL, a license based on copyright law. Yet, while Stallman attracted a somewhat homogeneous community of programmers to his movement, Creative Commons has attracted a sprawling community of eclectic interests, diverse priorities, and no agreed-upon philosophical core.

By choosing a middle path that embraces but seeks to transform property discourse, Creative Commons may avoid the marginalization of ardent leftists and the modest agenda of fair use activism. It remains an open question whether the ideological fuzziness at the core of Creative Commons, or the limitations of its licenses, is offset by its success in popularizing a new cultural vision. Yochai Benkler, the great commons theorist, understands the legal criticisms, and agrees with them to an extent. But ultimately, the significance of Creative Commons, he believes, has been “in galvanizing a movement, in symbolizing it and in providing a place to organize around. From my perspective, if I care about Creative Commons, it is as a cultural icon for a movement, more than as a set of licenses. Which is why I am less bothered than some, about the people who are beginning to criticize Creative Commons and how good the licenses really are, and how compatible they are.” ³³²

For Cory Doctorow, the copyfighter and sci-fi writer, the eclectic viewpoints within the free culture movement is a decisive strength: “The difference between a movement and an organization,” he wrote on the iCommons listserv, “is that an organization is a group of people who want the same thing for the same reason. A movement is a collection of groups of people who want the same thing for different reasons. Movements are infinitely more powerful than organizations.”

The reason the environmental movement is so powerful, Doctorow continued, is the very fact that it encompasses “anticapitalists, green investors, spiritualists, scientists, hunters and fishers, parents worried about environmental toxins, labor reformers, proglobalists, anti-globalists, etc. . . . Denuding the ideological landscape of the environmental movement in a purge to eliminate all those save the ones who support environmentalism qua environmentalism would be the worst setback environmentalism could suffer. Likewise copyfighters: there are Marxists, anarchists, Ayn Rand objectivists, economists, artists, free marketeers, libertarians, liberal democrats, etc., who see copyright liberalization as serving their agenda. If we insist that copyright reform is about copyright reform and nothing else, there will be no copyright reform movement.” ³³³

There is a price to be paid for all this diversity, however. Diversity means constant debate. Debate can escalate into strife and sectarianism. And in the free culture movement, where so many people are feverishly improvising and inventing, nearly everything is open for debate. It turns out that this business of inventing the commons is complicated stuff; there are many ways to construct a commons. It is only natural for people to have their own ideas about how to build the digital republic.

The fundamental question may be whether the existing framework of copyright law and property discourse can be adequately reformed — or whether its very categories of thought are the problem. The late poet and activist Audre Lorde, in the context of feminist struggle, declared that the prevailing discourse must be overthrown, not reformed, because, in her words, “the master’s tools will never dismantle the master’s house.” Within the free software and free culture movements, however, there are those who believe that copyright law can be sufficiently adapted to build a sharing economy, a more competitive marketplace, and a more humane democratic culture. Others are convinced that the legal discourse of property rights, however modified, will simply entrench the very principles that they wish to transcend. As the movement grows and diversifies, debates over what constitutes the most strategic, morally honorable path forward are likely to intensify.