Creative Commons and Free Culture
Prof. Lawrence Lessig
Professor of Law, Stanford University
Author, Free Culture
Author, Code and Other Laws of Cyberspace
Chairman, Creative Commons
Scientific America Visionary, 2002
In an ideal world, art and science are only limited by the laws of nature, but with the increasingly commodotized character of technology, creative works are often bound by the laws of copyright protection. Over the years and especially in the past few decades, copyright protection has been consistently increasing, thereby granting exclusive rights and virtually interminable limits of creative works to few powerful entities. Lawrence Lessig (LL) joins Frank Ling (FL) to talk about his efforts at reversing this trend and strengthening the rights of creative individuals. Lawrence Lessig is currently professor of law at Stanford and in 2002, was named one of the top 50 visionaries by Scientific America.
FL: Professor Lessig, thanks for joining us today.
LL: Thanks for having me on here.
FL: There is a growing number of people who feel that our copyright laws are increasingly stifling creativity and innovations which are the basis of our economy and our political growth. Perhaps, to put us in context, tell us what we need to do about this.
LL: Well, I think the first thing is to recognize really an unintended and dramatic change that has happened in the last 10 to 15 years. Unintended, because nobody who wrote the copyright laws had the internet in mind when they wrote their system of regulation that governs what kind of creative work you can make and what kind of permissions you need up front. But dramatic, because while the copyright law for most of our history regulated a very small group of commercial publishers, it’s now essentially regulating everyone who wants to engage in creative activity using digital networks. And the world it creates is the world that asks permission first. Of course that is not only costly for lots of creators and impossible for many. It’s also stifling of a certain kind of creativity because if you need to get permission, then obviously you are not going to say things that are critical in a way that the person that needs to give you permission wouldn’t give you permission. So a permission culture is who we have become and my claim is that for most of our history, we’ve been a free culture where copyright was respected but it didn’t have this extraordinary and extreme control over how people create content.
FL: And we rely on this freedom for our country’s growth and political strength?
LL: Absolutely, technology companies in the (Silicon) Valley are increasingly seeing just how costly overly burdened copyright regulation is. It makes it hard to develop technologies. The technologies they develop have to be burdened by this extremely cumbersome, inefficient digital rights technology and so many people are asking, “Isn’t there a better way to make sure artists get paid without forcing us to break the internet in the process?” So that’s the commercial cost, but increasingly we are seeing a democratic cost too because the internet — through blog technology and through the opportunities to rip and mix content — has an extraordinary potential to create, to produce and distribute political messages and increasingly, we are seeing how even in the political context, copyright regulation is blocking the opportunity for people to express themselves powerfully.
FL: You are involved in many project these days. One of them, the Creative Commons, has been receiving a lot of attention lately and impressively, has been used for over a million pieces of work. I believe it is now 3 million? I think many of our listeners would be interested to know a little more about this.
LL: So the problem that you face in the internet right now is that the default, given to us by the RIAA, is no. The default is whatever you find out there, you have no permission to use unless you find somebody to clear permissions upfront. So what we’ve decided is to build a simple way for creators and speakers and authors to say upfront freedoms that they want their content to carry. So, Creative Commons if you go to our website creativecommons.org, you can very simply select what the law calls a license that gets attached to your content and basically says I am allowing you to use this and you have a couple choices. You can say you want to require attribution or you want to forbid commercial use or you want to restrict derivative uses. There is basically eleven different options that you have and once you express those freedoms that gets attached to your content and people know they can rely upon those freedoms when they come across your content. So we have wonderful examples. For example, this guy Colin Mutchler, a very important creator in the space of building digital freedoms, but he is also a guitarist. He produced a wonderful little guitar track called My Life, released it under a Creative Commons license, and that license then meant that others can download it and use it and change it as they want it. Seventeen year old violinist named Cora Beth downloaded it and added this extraordinarily beautiful violin track on top of the guitar track and rereleased it back to the internet under the title My Life Changed and the product of that collaboration is extraordinarily beautiful. The important point is there was no lawyer in between these two creators. They didn’t have to secure permissions and find a record label to enable them to be able to share work, sign contracts. They were able to do it because the freedoms were already built into the content. Now, there are a lot of people who thought that’s the way the internet was in the beginning. That it said you are free to do anything you want and a lot of us wish that was the basic rule about the internet. But the copyright war that the RIAA has been fighting for the last five years has basically changed the default of the internet into a regime that says you have to ask permission first and we think that is wrong.
We don’t know of any actions that have gone to court and of course given the inefficiency of our legal system, you go to court as a last resort. A last recourse for any hope to defend your rights. So then our hope is that you don’t need to go to court in this context. There have been battles, lot of misunderstandings, lots of people saying you use my work in ways I didn’t give you permission for, but what’s great about having a common set of licenses that literally millions of people are using is that it develops its own common law or we can call it common’s law where there is a pretty simple set of understanding for developing. People know what what they should be allowed to do and we can rely upon that to make any disputes go away.
FL: You were originally trained as a constitutional lawyer. I’m wondering how you got interested in copyright protection and why now? Has the internet made an impact on this?
LL: I’m a lawyer with a guilty conscience. I was inspired many years ago by work of, for example, Pam Samuelson who is a professor here on campus who is increasingly trying to demonstrate how the law had lost touch with its original motivating ideals and I got into copyright law indirectly because I was writing a book called Code and Other Laws of Cyberspace. And that’s a book about the relationship between technology and legal policy, and as I worked out the relationship in the context of copyright, it was for me the most interesting example of how legal policy can be subverted by technical infrastructure or architecture. So that’s when I first began to see the debate, but as I got into it more and more, I was more outraged by the extremism which the law has spun to. We have a very strong balanced tradition in the United States to protect the rights of creators. That’s an important part of it but also the rights of the public to get access to build upon other people’s creativity and Congress has been bought by a narrow set of interests who have have a narrow set of interests about what copyright law means. So they pretend that their vision is connected to our past, so when Congress was considering the Sonny Bono Copyright Extension Act, which extended the term of existing copyrights by 20 years. Mary Bono, who was Congressman Bono’s wife before he died, introduced a bill and and said that she believes that copyrights should be very strongly protected and they should maybe consider Jack Valenti‘s proposal that copyrights be forever minus a day. Obviously, that is unrelated to what our framers had in mind when they said that Congress has the power to secure copyrights for a limited time. A limited time is not forever minus a day. It’s not even the 95 years that Congress has now given to copyright holders so my motivation for this was just seeing how the law had gotten out of control and it was destroying a really important democratic opportunity. People could speak and use this technology in ways that were impossible before. And just at the time, the technology makes us available to a wide range of creators and speakers. It’s wrong for the law to come in and take that freedom away.
FL: The internet is a great medium for distributing these works. What do you see as the greatest threat against the proper evolution of the internet?
LL: Well, we are in the middle of the piracy wars and the copyright wars and Congress is convinced that unless they force technology companies to build into their technologies the systems of perfect control, then we will lose the copyright industries. And my fear is that in the next 5 years, there will be such a radical shift in the basic infrastructure of the internet to answer the demands of the copyright holders that the picture of an internet where people are free to mix and express themselves using this content will be just out of distant memory. You know, I don’t think see it right now because the fact is you can rip your CD, you can mix it with a DVD that you’ve ripped, you can put them together and you can post them on the internet and there is nothing technically to stop you and if there is, the technical controls are relatively weak. But in 5 to 10 years, as these trusted infrastructures for computing become more prevalent, it bet you to do that with content will increasingly depend upon on whether content owners give you that permission. If you think of content in the model of DRM (digitalized management content) then you would have these freedoms to these importantly democratic things with your content will not be guaranteed. It’s basically, the permission plantation culture will choose which part of our culture which they own, you’re allowed to use, and that will restrict people’s freedom to create in fundamental ways.
FL: You recently had a book that came out, Free Culture, which is available on the Creative Commons License and available freely on the web right now. Some people have taken it and made their own versions of it. Maybe you can tell us a little bit about some of those.
LL: Yeah, this is one of the most exciting things about the book. My publisher, actually my editor, after reading the book and editing it, suggested that we try to convince Penguin Press to release the book free online when it goes for sale in bookstores. And I had intended to try to persuade Penguin from the beginning and now I had my key ally. So they convinced Penguin that this would sell more books. Penguin is not in the business of giving away their assets. You want to sell books, so we convinced them it was a good way to sell books. My objective of course was to spread the ideas as broadly as I could. So, in the months since the book has been out, there has been more than 175,000 downloads of the book, but the part that nobody even thought about was because we released it under the Creative Commons License that allowed people to create derivative works for non-commercial purposes, I selected the license that said you have to give attribution and you can do it only for non-commercial purposes. Within a day, there were nine separate formats of the book posted on the internet. A day and a half, someone suggested doing audiobooks, so different people have volunteered to read chapters and they read chapters and posted it back to the internet. So you can download a free audio version of the book. Somebody put a wiki of the book up, so they took the whole book and made it so that literally now anybody in this wiki community develops the book however they want. So the book has a life of its own. I just came back from a meeting with people in China who have put it into a Chinese wiki to enable people to translate it so there is a community project to translate the book in China right now. And to put all of these reuses or remixes of the content, it would never have happened if the traditional regime had been in place because everybody knows you have to get permission up front and if you didn’t get permission, you would be subject to extraordinary high copyright liability and so it would have been better to spend their time doing something else. Well, from my perspective, it’s better to spend their time investing in ways to spread the ideas of free culture broadly and I hope it turns out good for their publishers too because that will encourage more publishers to do this in the future.
FL: We should get Robin Williams to read it.
LL: That would be great.
LL: So Creative Commons was launched a year ago December and we just received funding to expand the idea into the context of science. The same problem exists in science that exists in the context of culture. Increasingly, companies are insisting on proprietary controls over data and proprietary controls even over research results and both of these controls make it harder for people in the business of doing science to get access to the information they need and the data they need to do their work. Now, you can understand the restrictions in the context of culture easier than in the context of science because there is a norm that is deep within the science tradition, which is you produce results and make them available for others to test. Now, if they are only available to elite American universities because they are the only universities that can afford to pay very high prices for getting access to these journals, it’s not science anymore. It’s got to be equally available around the world if the ideals of science are to be met. So the Public Library of Science was started with some very substantial generous funding to try to build an alternative model for publishing scientific results. And this is an open access model for publishing. Basically, there is some very high quality journals that PLOS has started. PLOS Biology was the first. These journals are printed and they are beautifully printed journals, but every article printed is marked with a Creative Commons license and posted in a PDF form on the internet and anyone can build their own archive of these articles. But what that means is it’s guaranteed forever this content will be freely available around the world and PLOS is trying to sell this idea of this way of publishing to people in science generally. Now, there are two kinds of arguments that go on here. I think of them as a European argument and an American argument. The Europeans love to think of this in a quasi-communist rhetoric of publishers or evil profiteers and their making money instead of spreading science, and you know if that rhetoric does it for you, fine. But I don’t think that’s what’s important here. It is not about punishing publishers, it’s not about making it so that people can’t make money. It’s instead about trying to find a way to produce and spread science that guarantees that this fundamental value of science is realized, that science is available universally. So this is just a different business model for producing science. It’s a non-profit business model for the publisher but people are getting paid to print things and people are getting paid to host content on the web. So this is not non-commercial in a deep sense, but it’s objective is different from the objective of the traditional publisher’s model and my fundamental point is we should see if we could do it this way because if we can, we can produce much greater value to the world than the alternative: we lock all of our content to proprietary expensive journals.
FL: So how do we maintain a good level of peer review for these articles?
LL: These articles in PLOS Biology go through the same peer review process that any article published in any biological journal would. So it’s the same process except instead of the way the system works in general now, researchers will write an article for free, submit it to a peer review panel, which reviews it for free, and then submits it to a journal and then his or her university has to buy the information back from the journal. This system has it so that you are producing it for free, you are having it peer reviewed, there is some author support to get the article published, but once it is published libraries around the world will be able to get access to this information for free.
FL: So, it is free for both the author and the reader?
LL: In the initial model, the author is supporting some of publication through author publication rights. So actually in the context of biology, it is a common feature. The real beneficiaries of this though in the long term will be libraries, which can get access instead of paying an extraordinary amount of money to these journals, you can get access to it for free. And people outside of Berkeley, Stanford, Harvard, and Yale who have easy access to this content because we are elite American universities, people in Bangalore, people in South Africa can get access to this information just as easily as you and I can and that’s more consistent with the values of science than the proprietary model is.
FL: Well, it’s been a fascinating talk with you. Are there any last words you’d like to add about yourself or your current work?
LL: Nothing about myself of my current work, but I would like to say something about the work that people here ought to be doing. This is an extraordinary important struggle because it will define the freedom that people have to help build and change their culture. And we will only claim back the opportunity for that freedom from Washington if more people get involved so I would really urge people, who are beginning to see the insanity of this law, not just to fight the law by disobeying it but by fighting it to get it changed. It has no connection to our tradition and we ought to stop it.
FL: Professor Lessig, thanks for joining us today.
LL: Thank you for having me.