Lessig

I am very proud that Public Campaign (a beltway non-profit focusing on campaign finance reform) yesterday released this poster under a CC license. If this case has taught us anything, it is the importance of their battle.

We are in the process of versioning the CreativeCommons licenses, so check out the discussion and please participate.

David Sifry has built many great things at Technorati. As Joi notes, his new breakingnews is fantastic -- and not just because it is made free under a Creative Commons license.

Thanks to Scott Lazerwith and Murry Chapman for sending along this bit of good news: Alan Greenspan has signaled what other smart economists have been saying for a long time: That this race to protectionism in the field of intellectual property is not without cost. As Greenspan said,

"If our objective is to maximize economic growth, are we striking the right balance in our protection of intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so broad as to shut down follow-on innovation?"

This is good news for all things happy and light, for it helps a meme that we should be pressing hard: IP is of course good; but it does not follow that more IP is better.

Dave has posted instructions for placing a Creative Commons license in the RSS feed generated from a Manila weblog.

This is great news. We have launched a campaign to build a layer of reasonable copyright law in a world increasingly defined by the extremes. CC tags -- marks expressing freedom beyond fair use -- is an important first step. Web logs have been the most important early adopters. With Movabletype, and now Userland, the most active and vibrant community on the web is beginning to show the rest something between the extremes.

Doc has an interesting post about CC licenses and the public domain. As he rightly notes, we have no direct license that you can link to so as to place your material in the public domain. This is not because we wouldn't like to offer such a license. It is instead because the law does not make such simplicity possible. While for most of our history, there were a thousand ways to move creative material into the public domain, most lawyers today are puzzled about whether there is any way to move work into the public domain.

We have tried to build a way, but it is not automatic. If you follow this link, there are a number of steps you can take to put material into the public domain. We believe that if you follow these steps, then your work is in the public domain. Again, there's no way to be certain about this. But this is our best guess, given the murky state of the law.

Again, this can't be automatic. But you can automatically license your content under an Attribution only license. The only requirement that an Attribution licenses imposes is that a subsequent adopters give credit. This is an important, but slight burden. And because our licenses are perpetual, this is quite close to a public domain dedication.

Doc has a great post pushing public domain dedications of content. But on the way to his valuable recommendation, Doc writes,

"I believe what Userland and the Creative Commons people have made here is, literally, a DRM — digital rights management — system, in the best possible sense of the acronym."

I think it is useful and important to distinguish between DRM and DRE -- digital rights management vs. digital rights expression. DRE is a technology simply (1) to express rights. The "management" in DRM implies a technology -- code -- both (1) to express rights and (2) to enforce it.

But for all of the reasons that the DMCA debate has made clear, there are lots of problems with DRM systems precisely because code is used to enforce copyright rights. Code can never accurately map fair use, it can never reserve a right to criticize the existing expanse of control, etc.

DRE is therefore DRM minus the management. A DRE system simply enables an efficient way for people to say what freedoms they are enabling. In a world where the default is "all rights reserved," CC DRE enables a simple way for people to say "My content is free in the following ways."

That CC freedom is of course in addition to the freedoms guaranteed by "fair use." But "fair use" is not, in our view, enough. The Commons needs a richer range of freedoms than the freedoms guaranteed by "fair use." CC thus enables people voluntarily to increase the freedom around their content.

We believe saying CC-free is an important step for many reasons. But we also think it is importantly different from technologies that would make computers the enforcers of the limits on that freedom. DRE is therefore not DRM.

Finally, one technical point: Our CC licenses expressly state that you can't use our technology with a DRM system that does not adequately protect "fair use." As I've not seen a DRM system that adequately protects "fair use" yet, imho, that means you are not allowed to use a CC licenses with a DRM system yet. At least that is so if you take seriously the commitments the CC license imposes.

Who kindly email to ask whether they can link to my content on my blog: The permissions for my site are expressed in (1) human readable form, (2) lawyer readable form, and (3) machine readable form in the Creative Commons license linked at the bottom of the page. The whole point of this is to enable people to build upon other peoples' work without signing a contract. (Here's a nice flash to make the point.) So please excuse me if in response to your request, all you get is a link back to this post. If you need express permission, then I'm sorry: CC-express is the best I will do, because a world that better expresses freedom is the space we are trying to build.

There's a very cool new featured commoner at the Creative Commons site.

Joi Ito has joined the Creative Commons board. One clearly bright spot just got brighter.

Dennis Kucinich is blogging his campaign for President. I'm told it is with his own fingers. I can see it is with a Creative Commons license.

More CC music. Check out this blog entry from Creative Commons. Two musicians, Shannon Campbell and Scott Andrew are writing a song together over the next 24 hours, as part of a blogathon to help Mr. Holland's Opus Foundation. Each verse is being released as it is complete -- free under a CC license.

Even Julius Caesar uses a Creative Commons license.

Creative Commons has launched a series of technology challenges that we invite anyone to tackle. That mirrors the artistic challenge of our Moving Image contest. More soon.

The Creative Commons Moving Images Contest deadline looms (Dec 31). Give us 2 minutes explaining our message better, and we'll give you the world. (Ok, just a G5 or Alienware 2001DV) (Take the Mac!).

The contest will be judged by a great collection of great judges (including my favorite actress, Elizabeth Shue). And as I continue my regret about the bad timing of my trip to Tokyo, here's a great idea: mash-up the Comic Market!

Jack Valenti says goodbye in the LA Times today, rating his career "AE--always exciting." A few better and less-well known Valentisms from the King-Kong of lobbyists:

On the nascent cable industry, in 1974
"[Cable will become] a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted material. We do not like it because we think it wrong and unfair."

On the dangers on media concentration, 1984 Op-Ed
"Will a democratic society allow just three corporate entities to wield unprecedented dominion over television, the most decisive voice in the land? There are now only three national networks .... There will never be more than three national networks."

I'm pleased to remind everyone that Congressman Rick Boucher will be running the Lessig Blog this week. Rep. Boucher is a hero to many for his opposition to the DMCA and authorship of the Digital Media Consumer Rights Act. And yes this is a Virginia conspiracy.

I will return next week, and special guest Judge Richard Posner will close out the month, starting August 23. Goodbye till then, and thanks for all the comments and feedback.

In the Wall Street Journal. On a plane to New York in the morning. I'll report back after the concert.

flickr has a Creative Commons view. Very cool.

Here's more CC licensed political speech, and though I like the message, it would be great to find some from the other side too. "Unamerican"

STADSchromosomen (City Chromosomes) is a project from Antwerp, in which the people of Antwerp were invited to write a biography of the City. They've published the book under a CC license -- perhaps the first in Belgium.

Attention to Mr. Orlowski has apparently waned, so his trash is back. You might not get this from his article, but even though he states "[t]his week Trudeau has turned his attention to the 'Creative Commons' project," in fact, Trudeau does not mention "Creative Commons" at all. Indeed, for anyone who knows anything about what Creative Commons is trying to do, no doubt Thudpucker is a funny character but his views have little to do with mine, or CC's.

And as for the project that has "failed to gain much traction," we were surprised (and pleased) to see this week that the Yahoo linkback search to Creative Commons licenses is now over 10,000,000. If that's right, then we were at 1,000,000 link backs in a year, 5,000,000 in two, and now over 10,000,000 in 2 1/2. Imagine what we could have done had we only gotten some "traction."

But the best part of reading this article is that it advertises at the bottom "related articles," including this. I am astonished that The Register continues to carry this trash (or, for that matter, its author). As I told them then, the article is a lie. Not mistaken, but a lie: a knowing falsehood, published, and published still. Such is the nature of the writer, and apparently the publication.

Jeff Tweedy of Wilco on Creative Commons on NPR's Talk of the Nation (mp3).

From a friend who is on the Harvard faculty:

i take a car service to the airport this morning. driver is an older irish boston type, very talkative; do i know the history of cambridge, the reason behind the establishment clause ("[another Harvard professor] didn't..."), etc. as we're hitting the airport, he hands me his self-published tract on the crisis in public education and how to solve it by canceling the Simpsons.

"you should put it on the web," i say, which is what i usually say when handed a self-published tract by a cab driver. "i did," he said, "and it's under a creative commons license." (and, he adds disapprovingly, [the other prominent Harvard professor] hadn't even heard of creative commons.")

i had to tell him to put it in a wiki just to retain my sense of being anywhere near the cutting edge.

Here's the book.

Bill Thompson calls himself a critical friend of Creative Commons, which in my world, is the only kind of friend one wants. But I can't escape thinking we're having an argument when there's nothing to argue about (again, a common feature of the very best of friends).

Bill believes in moral rights. He thinks Creative Commons doesn't. Or more precisely, he thinks Creative Commons the collective, or me the individual, doesn't "care" or "understand" moral rights. Instead, he thinks we think copyright "is simply an economic matter." That is "US hegemony," Bill insists (please put that word on the list of eliminated words when the revolution comes), which neither he, nor anyone, should "accept."

As someone who has been strongly criticized for strongly criticizing the US (even on foreign soil no less!) I'm all for eliminating US "hegemony." But there's just a simple misunderstanding here that we (CC) needs to do a better job addressing.

Creative Commons offers free copyright licenses to artists and creators. The purpose of the license is to enable the artist or creator to mark his or her copyrighted work with the freedom he or she intends the work to carry. Those "freedoms" are the exclusive rights that copyright grants the copyright holder which the law permits the copyright holder to waive. The design of the system is to be automatic. No contract, or meeting of the minds, is intended. It is simply a license that says "if you use my copyrighted work in ways that would otherwise infringe my exclusive rights, I won't sue you if you have abided by this license." (The law makes everything ugly, but anyway, that's what it does.)

Moral rights -- which are not "European" but in fact common to the US/UK tradition and the European tradition (in our tradition, they are called "author's rights," and the great text on this is Lyman Ray Patterson's Copyright in Historical Perspective) -- don't admit of such easy manipulation. In many jurisdictions that protect moral rights, you can't just automatically give away the moral right, without knowing something about how, or in what context, the work is to be used. For those jurisdictions then, a Creative Commons-like mechanism just wouldn't work. Such a mechanism couldn't succeed, in other words, in effecting an agreement about such moral rights. Creative Commons is a hammer. This is glass blowing.

So our response to these jurisdictions is simple: we don't purport to affect the moral rights at all. They are left as they would be, because our tool can't effectively do anything about them. Thus, it is not because we don't "understand" moral rights that we don't do anything about them. It is instead because we precisely understand that our tool, given the law, can't do anything about them.

Thus, to say that we think there's only one tool in the area of copyright and moral rights is, I think, to have it backwards. Those who would criticize Creative Commons for not "solving" the "moral rights problem" are the ones who think there is only one tool. We're the first to admit that we have a hammer, and you need a glass blower, so please don't consider our tool to be the tool you need if negotiating, or respecting, or understanding, moral rights is your objective.

Now this isn't the case in every jurisdiction that protects moral rights. The contours of the law are different in different countries. Thus in some countries, we have been able to craft the license to give the author the power to grant both copyrights and moral rights. But in strong moral rights jurisdictions, that simple is not possible using the device we have crafted.

So again, I don't see how this is us "dismissing" moral rights. (Does aspirin dismiss cancer just because it can't cure it?) And I don't see how narrowing our focus means we don't "care" about moral rights, if indeed you believe that a tool such as ours can't, in some jurisdictions at least, do anything about moral rights.

And finally, I don't see where I've ever said anything against moral rights. No doubt, they restrict the freedom of authors -- at least those authors who would like a simple way to alienate the rights. So too does the ban on slavery restrict the freedom of workers -- but you wouldn't think I support slavery just because I remark this obvious fact, would you? Indeed, in many contexts where I've been asked, I've said that the moral rights tradition has actually proven to be an important check on the power of publishers -- something we've forgotten in our own tradition. But none of that is to criticize, or to advise that countries change their law.

So yes, Creative Commons will not, at least in some jurisdictions, deal with moral rights. Nor will it cure cancer or end poverty. But if it is unclear to anyone, let's be clear about it: We don't therefore not "care" about cancer or poverty. We don't therefore "dismiss" those problems. We just understand -- as everyone should -- that the tools we're spreading can only do so much.

Finally, about Bill's claim that I think that copyright, as distinct from moral rights, "is simply an economic matter." I'm sure Bill got this from one of our conversations. He's a careful journalist (unlike the journalists he associates with). But I must not have made my point clearly, because the sense in which he offers the statement is different from what I mean. I do believe that "copyright" is "simply an economic matter" -- meaning that the rights originally protected by copyright were protected for economic reasons. That again does not deny that there are other rights -- read Patterson to see the rich set of "author rights" that existed at the time of our Founding. I wouldn't say that were simply "an economic matter."

But I do believe that copyright was about economics. And I continue to believe copyright is important, primarily for economic reasons. But that again is precisely why we wanted to create a simpler copyright, for the many many creators who either are not creating for economic ends, or who believe that control over their creativity is not a necessary means to their economic success.

Free law is the tool we created. A tool to enable people to achieve something at the legal layer, just as iChat enables people to achieve something at the application layer. But as iChat isn't for everyone, or at least, for everyone for any end, neither is CC. I would not advise Britney to put her music under a CC license. I would advise Gilberto Gil to. Tell me what you're trying to do, and I'll tell you whether we've got a tool for you. (That's of course, rhetorical. Please don't tell me. There are briefs, and filings, and classes, and family that demand the time that answering questions would take.)

So some smart folks suggested we start passing out buttons for the CC fundraising campaign. We like smart folks (or at least some smart folks), and so we did. Go here to get a button. Please. Pretty please. Or whatever form of please will get you to go.

Bay Area CC friends: You are invited to a party on July 14 at the 111 Minna Gallery in San Francisco, hosted by GOOD Magazine! Join us for a night of art, music (provided by Odd Nosdam of Anticon), and an open bar. Admission is free if you purchase a year subscription to GOOD Magazine.

GOOD is a new publication focusing on people, ideas, and institutions that are affecting the world in innovative and positive ways. One very cool thing about GOOD is its Choose GOOD campaign, where you can subscribe to a year of the magazine for $20 and choose a partnering non-profit organization that you want 100% of your subscription fee to go towards helping. That means for $20, you can subscribe to a year of GOOD, make a contribution to CC, and gain admission to a night of great fun.

Details:
GOOD Magazine comes to San Francisco!
Friday, July 14; 9pm-2am
111 Minna Gallery (111 Minna St.)
Art, music (provided by Odd Nosdam), and open bar all night.
Magazine subscription required for entry. 100% of your subscription fee can go towards helping CC! Subscribe here.

To RSVP: (1) go to www.goodmagazine.com, (2) subscribe (all $20 goes to the organization you choose) and (3) email your name and confirmation number to RSVP@goodmagazine.com.

Join us for the July CC Salon, taking place in San Francisco on Wednesday, July 12 from 6pm-9pm at Shine. CC Salon is a casual get-together focused on conversation and community-building with 2-3 brief presentations from individuals and groups developing projects with relationship to Creative Commons. We look forward to seeing you there!

CC Salon - San Francisco
Wednesday, July 12, 6-9 PM
Shine
1337 Mission Street (between 9th and 10th)
San Francisco

iCommons is an entity Creative Commons helped incubate. Its purpose is to enable a platform for commons-related projects from around the world to interact -- including A2K, Wikipedia, Free Software, Free Culture Movement and Creative Commons.

One core project of iCommons is an annual summit. The first year was Boston. Last year was Rio. This year is Dubrovnik.

Tomorrow, CC will be launching a special fund-raising drive to raise money to sponsor scholarships to the Summit. Click here to help.

Thanks to the many (and I know, because I get to write the thank you notes) who responded to my request to help us increase the scholarship funding for the iCommons Summit. We are in the last days (Monday we need to decide who we can fund and who not) and we need $16,000 more from the public campaign. Please do what you can. Or maybe, a bit more than you can. We're trying to bring as many as possible. Not many in this movement can afford a trip to Croatia without support. We want to help as many as possible.

A couple clicks and you could help us bring a couple more.

Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter's right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use." (Count V of the complaint).

The comments on the Slashdot thread are very balanced and largely accurate. (The story itself is a bit misleading, as the photographer also complains that Virgin did not give him attribution, thereby violating the CC license). As comment after comment rightly notes, CC licenses have not (yet) tried to deal with the complexity of any right of privacy. The failure of Virgin to get a release before commercially exploiting the photograph thus triggers the question of whether the minor's right to privacy has been violated.

I'm not allowed to comment just now about the merits of the lawsuit. So I won't. But I did want to comment about some obvious, and not so obvious points triggered by the suit.

First, and obviously, CC has worked, and will continue to work, to find ways to make the meaning of our licenses clear. Our aim is to provide licenses that do what the copyright holder wants. If the licenses are not clear, then we can't achieve our aim.

Second, our desire to make our licenses clear far exceeds any obligation that may be imposed by the law. We've tried to make copyright simpler than Congress did (at least for the vast majority of those now regulated by copyright) (See, for example, the efforts we've taken to simplify the right of a copyright holder to terminate a transfer of his rights.) So too do we try to make the meaning of our licenses simpler than any standard that might be required by the law.

But third, this case does demonstrate that there is work to be done beyond the scope of what CC has tried to do so far. The CC licenses, for example, don't purport to deal with rights of privacy. We've already begun to think about whether we should because of an iCommons node, or project, our chairman, Joi Ito, wants to launch called the "freesouls" project. Joi's aim is to produce high quality images of interesting people, licensed under a CC-BY license. He certainly recognizes that means commercial entities (like Virgin) can use his photographs. But without a "model release," such use is not simple. Making it simpler — for those who want to enable that simple use, both photographer and subject — is the objective of Joi's project. Simpler either by a general release, or a simple mechanism to secure particular permissions. Again, the CC-BY license solves the permissions problem for all copyrights. But it does not solve the permissions problem for a publicity right, or a right of privacy.

Finally, this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software -- enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes "commercial use"), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn't trigger at least most non-copyright rights (though again, most is not all -- a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

Stay tuned for more as it develops.

As I described before, ccMixter is up for sale. You can read a Q&A about the RFP here. Get your proposals in.

While most companies have cut back on their support for the Commons, wonderfully and amazingly, the most constant and forceful support continues -- Sun ($50k). We're now within $12k of making our goal -- something that seemed impossible just 2 weeks ago. Massive increase in small time contributors. Thank you to all. And please help put us over the top.

Beautifully put by Fred Benenson:

NIN's CC-Licensed Best-Selling MP3 Album

Fred Benenson, January 5th, 2009

NIN's Creative Commons licensed Ghosts I-IV has been making lots of headlines these days.

First, there's the critical acclaim and two Grammy nominations, which testify to the work's strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week, and hitting #1 on Billboard's Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon's MP3 store.

Take a moment and think about that.

NIN fans could have gone to any file sharing network to download the entire CC-BY-NC-SA album legally. Many did, and thousands will continue to do so. So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon's MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked.

The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule, and point them here.

From the Creative Commons blog:

YouTube just made an incredibly exciting announcement: it’s testing an option that gives video owners the ability to allow downloads and share their work under Creative Commons licenses. The test is being launched with a handful of partners, including Stanford, Duke, UC Berkeley, UCLA, and UCTV.

We are always looking for ways to make it easier for you to find, watch, and share videos. Many of you have told us that you wanted to take your favorite videos offline. So we’ve started working with a few partners who want their videos shared universally and even enjoyed away from an Internet connection.

Many video creators on YouTube want their work to be seen far and wide. They don’t mind sharing their work, provided that they get the proper credit. Using Creative Commons licenses, we’re giving our partners and community more choices to make that happen. Creative Commons licenses permit people to reuse downloaded content under certain conditions.

Visit YouTube’s blog for information. And if you’re are a partner who wants to participate, fill out the YouTube Downloads - Partner Interest form.

Identify your Creative Commons content to FairShare, a project of Attributor, and the service will track and report how content is being used on the web. The service is free and the technology (Attributor) is amazing. Watch (to understand or for those who want, to profit) free content spread.

So Creative Commons just passed 100,000,000 photos on Flickr.

Change Congress just passed $1,100,000 withheld from candidates in our strike4change campaign.

And a year ago, we launched Change Congress at an event hosted by the Sunlight Foundation in Washington, DC.

Celebrate CC by buying one of Joi's limited edition "FreeSouls" books.

Celebrate C-C by joining our strike. Or even better, by donating all the money in the world (b/c that's what this campaign stands against).

I can't begin to describe how rewarding it is to see the voting start on the question whether WIkipedia should exercise an option granted to it by the Free Software Foundation to relicense Wikipedia under the CC-BY-SA license. I am very hopeful the community will choose to exercise that option.

This is an issue that has been close to my heart for years now. I have been pushing the idea of license interoperability explicitly since about September, 2005. The argument is a simple one: We need a guarantee that free culture lives on a stable, interoperable licensing infrastructure, so the weakness of any one won't bring the whole enterprise down. To that end, we initially began conversations with the Free Software Foundation to see whether we might make the FDL directly interoperable with the CC-BY-SA license. For perfectly legitimate reasons, the FSF didn't want to do that.

But critically, they also didn't want to weaken the Free Culture movement by forcing Wikipedia to live with a license that was not originally drafted with the full range of relevant culture in view. So the FSF amended the FDL to permit wikis licensed under the FDL to relicense. Wikipedia is now deciding whether to do just this.

My dream is that this will start in a serious way the process we scoped out 3 years ago. We've already been in discussion with the Free Art License community about making their license interoperable. I'd love to see that happen generally. In my view, the critical question is what freedoms the license supports, and whether it supports it well, not who wrote the license. We've got a long way to go to getting there. But it would be a critical first step for the Wikipedia community to support this crucial change.

Again, as Stallman said in a different context:

"If we don't want to live in a jungle, we must change our attitudes. We must start sending the message that a good citizen is one who cooperates when appropriate...."

Vote here (if you've made more than 25 edits to Wikipedia).

The amazing folks at the Center for Responsive Politics' opensecrets.org have released (under a Creative Commons license) 200 million records to help the world understand how influence in Washington works. This is enormously good news.

Even better is that today they were nominated for a Webby. Here's where you can vote to thank them in the best possible way.