February 26, 2005  ·  Lessig

Regarding Mr. Orlowski’s breathless rant about Doonesbury and Creative Commons: as the Surburban Limbo evinces (thanks, Staci!), the plot-line is actually two years old. While you’d have to be a bit clueless to believe that Thudpucker is actually speaking CC-speak, it would be quite amazing to think that he was speaking CC-speak in January, 2003. Sure, CC had been around for six weeks. But even Mr. Trudeau is not following events that closely.

Another mistake, Mr. Orlowski. Will you correct this one?

February 26, 2005  ·  Lessig

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.)

February 25, 2005  ·  Lessig

I dumped the following into the veins of the email system, one to each person who had signed a petition asking for reform of the copyright system.

Sorry about the intrusion, but an important opportunity has come up for you to have a positive impact on the direction of copyright law and I wanted to let you know about it directly. Thanks to some prodding by a couple of great US Senators, the copyright office is currently considering whether to recommend changes to copyright law that will make it easier and cheaper for you to use “orphaned works” — works that remain under copyright but whose “owner” can’t be found. As many of you have written me, this is a real problem that affects thousands of innovative people every year. But the copyright office still needs some convincing.

To convince them, we need your help. If you have a relevant story, or a perspective that might help the Copyright Office evaluate this issue, I would be grateful if you took just a few minutes to write an email telling them your story. The most valuable submissions will make clear the practical burden the existing system creates. (One of my favorite stories is about a copy-shop’s refusal to enlarge a 60 year old photo from an elementary school year book for a eulogy because the copyright owner couldn’t be found.) Describe instances where you wanted to use a work, but couldn’t find the owner to ask permission. Explain how that impacted your ability to create. Or pass this email on to someone who you know might have a useful story to add.

The Copyright Office is already overworked and understaffed, so I’m not asking that you stuff their inbox with demands for action, or anything like that. They are not Congress. They are not even the FCC. Their role here is as fact-finder, so “just the facts, ma’am.” (Oops, do I need permission to use that?)

Everything you need to do this is online at http://eldred.cc. We’ve explained exactly what the copyright office is asking for, how and where to submit your email, and provided some examples of stories we’ve heard from others about how their creativity has been stalled when they’ve tried to use orphan works. If you have questions, there’s a contact email there for people who can help you out.

In spite of my usual pessimism, I think we have a real opportunity here to move the law in a positive direction. Please help us “promote the Progress of Science” (and that text is in the public domain), by
showing the Copyright Office where unnecessary regulation hampers progress.

Stupidly, I did the sending myself, and so stupidly (but predictably), I failed to click the signature box, so it didn’t have the requisite “opt out link.” That was a mistake, and I apologize for it, but the missive brought a bunch of angry emails about my “spamming” them.

Those complaints evince the unfortunate shift in meaning of the term “spam.” As my post does not ask for money or propose a commercial transaction, it is non-commercial. It is therefore bulk email, but not, in my view, spam. More importantly, while people should do what I stupidly didn’t do (include an opt-out option), and people should not do what I’ve not done (abuse a list — this is the second time in almost two years that I’ve used the list), we should not be stigmatizing the use of bulk mail for political or policy related purposes.

February 25, 2005  ·  Lessig

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.

February 25, 2005  ·  Lessig

On my way back from Memphis, where I spoke at the Rhodes College Institute on the Profession of the Law. This is an annual event (well, my speaking there is not an annual event, but you understand), and I was struck not just by the College (which seems plucked from Oxbridge), but by the seriousness with which 100 lawyers spend a morning thinking, and arguing, about real issues. Maybe its something about the pure Tennessee air (my mom’s from Chattanooga), or the distance from Washington, DC. But it is such a pleasure to be able to talk about these issues with people thinking about them genuinely.

February 25, 2005  ·  Lessig

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.