January 8, 2007  ·  Lessig

Wow. Post an entry Friday, spend a weekend with your family, and return Monday to a brilliantly populated Wiki — with a matrix added.

I’ve followed up on some of the comments in the extended entry below.

One general point: Again, these “distinctions” are not; they describe continua, not categories. Maybe there should be a scale on each access — from extreme RW to extreme RO, total “commercial” to total “sharing.” I’ll think about how best to tinker with that as I see more examples.

Thanks again for the examples — and please feel free to add more.

From the comments:

Tom suggests I “work up a range of dimensions.” As the introduction indicates, I totally agree, and will, as more examples fill the matrix.

Serge suggests technical documentation for Free Software is read only? I don’t get that: All of those manuals are licensed under the (copyleft) FDL, which guarantees the right to edit and modify.

Crosbie read my post as “creat[ing] a schism” and asks why I “would seek to exclude commerce from ‘sharing.’” But again, I’m not trying to “exclude” anything. I’m trying to describe what there is. And indeed, hybrids are precisely sites which practice commerce by encouraging sharing.

Surfer Dude didn’t like the matrix much (“by far the most inance crap youve produced to date”) (he’s obviously not familiar with much of my work), though apparently the inanity infected his brain, for a bit later, his examples were among my favorite. The bathroom stall example shows the continuity with real space; the Burger King example points to a whole class of examples — think about Securities disclosures.

JSTKatz: I agree with all three examples — and agree the third is ultimately extremely productive, though norms against taking porn seriously are seriously constraining.

timsamoff: Perfect example, yes, to demonstrate the value of the mix. It would be great to see how many of the people who give things we call sermons now have them available in a RW way.

Bill Bliss is trying to understand the core distinction. So am I. He suggests audience-generated vs site-generated content. That is also a useful distinction, but not quite the one I’m focusing on. I’m interested in the effective freedom people have with the content, whether site generated or not. Klir is a cool example, however. I do agree, however, that even core Comm/RO sites will use RW — as iTunes does. Another example — Amazon. Even without the reviews, gather data about who likes what creates enormous value back to the user.

Karen regrets libraries are RO. I don’t. I like the RO character of libraries. But I don’t think that’s all they should be.

Tim Hurley points to a perfect hybrid: Threadless.com. This is relatively little demanded of users. When more is demanded of users, are more “rights” required?

Ryan and Own want to complicate things: Maybe that’s necessary. I’ll think through that as I sort through the examples.

michael houghton points to forums as RW-Noncommercial. That’s certainly true, but there are some great examples of RW-commercial. I wrote about one in a review in the London Review of Books — Microsoft.

Dave’s DSL reports is a great example of the progress I want to track as well — sites beginning in one form and moving to another.

Jim Downey’s pointing to Project Gutenberg is the point in reverse. Gutenberg was here long before most of us. It was constrained by technology. But as technology has progressed, it has been able to expand the range of freedom its technology can offer. But in the nature of its work (public domain material) one is free to do with it as one wishes. LII is also a perfect example I should have thought of. In both cases, I don’t think donations make things commercial.

Andy Oram discussed O’Reilly’s work here — as always — signals the future. I hadn’t seen wikicontent before, but this is precisely the experiment I’m trying to understand. O’Reilly is signaling clearly a part committed to the public. I would hope (because then there would be much less of this) that it wouldn’t be necessary for a company to swear off of profits to be able to get community participation. But this is precisely the measure — how much must one give up to get the community to play.

Janet and Crosbie had a significant exchange about CC that is not directly on point. I’m going to defer a complete response. My partial response to Janet is this:

(1) I believe the termination of transfers tool is certainly about the commons: There is a huge amount of scientific and scholarly work locked up in old agreements that needs to be freed for the net. This will be a tool to help do that.

(2) There is a very difficult (maybe unanswerable) debate about whether encouraging and facilitating some contribution to the commons on balance weakens or strengthens the commons. There are easy cases on both sides: If a parallel strategy (noncommercial and commercial) encourages music that otherwise couldn’t be contributed to the commons in any way, that’s a good thing. If a parallel strategy encourages an academic to distribute articles he would have published in a pure open access way now in a commercial way, that’s a bad thing. But I think the strategy should be to make arguments to creators, not to force structures into place that remove the choices of creators. And the critical point (and I should save this for a fuller post because this is too easy to misunderstand) is that people in the free culture and free software movements have got to recognize that not all creators live in an economy that gives them the choice to simply give everything they make away for free. It’s easy to say to an American law professor that all his or her articles should be licensed CC-BY. But it would be absurd to reason from the fact that that is easy to the conclusion it is easy to say to all photographers that all their work should be licensed CC-BY.

Nihongogakusei: What a great site. Hadn’t seen it. Thanks.

Dustin Kick: .Mac is also an example I hadn’t thought of. Thanks as well.

  • Serge

    Maybe my last comment wasn’t clear.

    Free Software’s documentation is often made modifiable in license, but not in implementation. You can go to the FSF’s web site and download the documentation, modify and then republish it- but you can’t do the last two on the FSF’s site.

    The content is RW, the site is RO.

    I may have misunderstood the original question but I thought it was about websites, since the material is RW but the site is RO

  • http://www.digitalproductions.co.uk Crosbie Fitch

    I don’t know about you, but I’m championing both the right of the author to commercially exploit their labour and the right of the author to freely build upon public works.

    Perhaps you can see how this is in diametric opposition to a copyright supported ‘non-commercial’ restraint?

    Free culture is about enabling artists to build upon published works and to sell their creations. The last thing you’d want to do is to discourage artists from charging for their work, or to prohibit use of their work by other artists who would like to earn a living.

    This is why it’s a strange to discriminate between commerce and sharing, rather than either commerce vs non-commerce or sharing vs non-sharing.

    Apart from some strange free-love, communist hippies I don’t think anyone’s proposing that artists shouldn’t enjoy the opportunity to exchange their labour for money in a free market like anyone else.

    The elephant in the room isn’t whether commerce is right or wrong, but whether the public should be prosecuted for sharing and building upon human culture as it has done for millennia.

    Stories used to be embellished by word of mouth, and paintings by a fair eye and deft hand. Today it’s all by binary digits.

    The blip of copyright is an economic artifice whose time has come and gone. Unfortunately, a printers’ agreed monopoly has become a suspension of the people’s liberty.

    Because people are publishers and always have been.

    It’s just taken a while for everyone to get hold of a printer.

  • lessig

    Serge: My mistake. Exactly right. The website isn’t RW.

    Crosbie: We’ve got no conflict about objectives. I suspect the only conflict is about whether copyright should be part of the solution. I certainly don’t mean to “discriminate” against commercial use. My only purpose is to reserve that judgment to the creator. To remove that right from the creator is to abolish copyright. I’m a big believer in that strategy in some places. I’m not a believer in that strategy generally. In my view, there are two mistakes about copyright out there, each the other side of the same coin: either to believe that the same model of copyright should govern all creativity, or to believe no copyright should protect any creativity.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Why on earth should one ‘creator’ be given the right to suspend the liberty of all other artists and members of the public in their use of the work the ‘creator’ has voluntarily chosen to deliver to them?

    A creator retains a right to absolute control and ownership of their work whilst within their private domain, i.e. until they choose to publish it.

    Questionable monopolistic privileges designed to restrict a few commercial publishers over published works do not get any more justifiable simply because all people are now publishers.

    A mandate to suspend the liberty of owners of printing presses is not transformed by default into an authorial right to suspend the liberty of the public – as much as commercial publishers would wish it to be.

    So, irrespective of whether a copyright holder may retain some residual commercial advantage by restoring some liberties back to the public for non-commercial use, whilst retaining them for their own commercial exploitation, this does not change the fact that copyright remains an unethical suspension of all artists’ liberty to share and build upon human culture.

  • lessig

    First, it is not true that an author “retains a right to absolute control and ownership of their work whilst within their private domain, i.e. until they choose to publish it.” Under US copyright law, even unpublished work enters the public domain.

    Second, “[w]hy on earth should one ‘creator’ be given the right to suspend the liberty of all other artists and members of the public in their use of the work the ‘creator’ has voluntarily chosen to deliver to them?” Why indeed, but now we’re back to Econ 101. If it is true that some work couldn’t be produced without this exclusive right, then the answer to “why” is because by so restricting the public, we get creative work we otherwise wouldn’t have.

    One might respond to that argument by claiming lots of work would be produced even without copyright. (Justice Breyer got tenure at Harvard making just such an argument: See Breyer, Stephen, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs.” 84 Harvard Law Review 281-351, 1976.)

    But such a response misses the point. Again, I’m not claiming all creativity needs copyright. And I’m really eager to cut back this regulation of speech where it is not necessary (such has been my life for a decade now). But the proof the anti-copyright folks must make is that no work needs the protection of copyright.

    That, in my view, is an economic argument. It is not a moral argument, since all moral arguments about it are in the end circular. E.g., your claim that “the ‘creator’ has voluntarily chosen to deliver” the work to the public. “Creators” “volunteer” within particular legal regimes. If the regime is one with copyright, then the “voluntary” action includes the protection of copyright. If the regime has no copyright, then of course I agree with respect to those who continue to create. But the whole argument is about those who cannot create because their is insufficient incentive. For hundreds of years, societies answered that failure of incentives by telling creators to go work for kings. I agree with Netanel (Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996)). It is progress to have moved beyond that patronage society.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    How many musicians over the years have selected a publisher to promote and publish their recordings, precisely upon the expectation that they will prosecute their fans to enforce the publisher’s exploitation of their copyright?

    The musician’s commercial expectation is that they sell their music to their fans, and that their publishers may enjoy a commission.

    That publishers agree to respect mutual monopolies is one thing, but for lawyers to argue that this can be extended to suspend the public’s liberty and prosecute individuals for sharing and building upon free culture is losing sight of ethics in pursuit of the publishers’ continued profit.

    Let’s try and get back to the principle of letting the artist sell their work to their audience, and away from selling the restoration of their audience’s liberty back to them. No doubt there’s much money to be made from the latter, but this doesn’t make it ethical.

  • three blind mice

    But the proof the anti-copyright folks must make is that no work needs the protection of copyright. (emphasis in the original)

    *mice dance with glee.*

    that’s really the crux of the matter, innit professor?

    if copyright is, in fact, needed for some works (as we mice believe), then one must enable the creators of such works the means to enforce their copyright.

    resistance is futile.

  • Aliaser

    Why Second Life is considered “sharing” while Youtube is commercial???
    I think Second Life should be considered Commercial/RW, at least you must pay something even to upload a file in SL.. While in Youtube it is free….
    Maybe SL could be another good example of hybrid…. anyway..

  • Janet Hawtin

    My concern is that dividing into shared and commercial is destructive and consistent with drm / microsoft thinking.

    If we start with two circles which are largely overlapped
    and 90% of the material is in the middle.
    5% one side was purely shared gift work
    5% otherside could be purely patent mine only
    The 90% material in the middle is material which could generate commercial value but is also used in the community for education, it might be professional knowledge that people share but earn from too, it might be styles of singing, blues jazz that people learn from but also participate in freely.
    Currently the groups in the patent mine only end of the spectrum are using arguments for commerce to move more and more material into that sector. The problem with that strategy is that there is no group representing the rest of us who see the function of information more broadly as something which can generate commerce while also serving wider functions within our community. Stories become the cultural infrastructure of the growing generation, but if they live in a subscribe only world their appreciation of theemselves as makers is stunted, same with scientific or technical development. A culture which is primarily subscription based has lost much of its inner resilience.
    As a garden it is a monoculture with black plastic between the authorised plants.
    Yes there are people on the free side of the circles aiming to have material fully free and gifted.
    There are also a growing population in the middle circle looking at the way that information has been traditionally shared and commercial and wondering why it needs to be locked up for the current crop of people to make a living. Given the increases in technological subtlty it is a very dramatic shift in the intrusive characteristics of the monopoly and is also being aggressively pursued in law with impact on community and cultural as well as business confidence. If you live in a community where a large proportion of the media available is broadcast from a nation which is interested in strictly controlling participation in that media your community is basically disenfranchised.
    In ths same way that the judges are interested in their traditional contours of copyright ..the rest of us are looking for the natural contours of community dialogue, shared and collaborative learning, traditional shared story telling, and commerce in the same mix, just commerce which is not restriction based.
    It is not that we are determining the choices of creators it is that creators are making choices which exclude everyone else, because they are told that to be commercial they must not share.
    We are training people to desertify the centre of the circle so that people are no longer making commerce without restriction because the laws and even file formats are being built to channel creators into exclusive modes of operating.
    This helps broadcast mode businesses which operate from a perspective where there is a single source.
    This is not useful for distributed mode businesses which operate from the perspective of participation as a value and of multiple sources of contribution.
    Generating a table which defines things as sharing or commercial is not accurate. Please consider adapting it so that it shows
    shared not for profit or community information? | commercial and community non restricive | commercial restrictive
    This is more explicit of the cost of restrictive commercial practise.
    Too many people think the commons is the first sector only.
    Shared information has traditionally been a part of the
    This is how information has been for our communities and businesses. There are dramatic social costs already caused by restrictions on IP in the interests of commercial profit.
    In my opinion restriction is a model which has been built by people who broker information because the rest of the world which actually create and interacts with it lose out as a result.
    The Access 2 Knowledge movement is growing.
    I am hoping that they will grow and make it evident that the community role of information is important and that commerce is not a function of restriction.
    Information brokers are looking for growth in their sector and so instead of new products or new ideas they are becoming more intrusive and militant. A digital book cannot be a gift to a friend.
    Students who are not physically at school are not safe to use materials for educational purposes. It is a nonsense. It is disfunctional. Sharing is natural. Commerce is important, restriction is not. It would be a shame if while the A2K people are buidling people’s understanding of the role of information in society, the creative commons is exploring the nether regions of restriction and describing restriction as commerce.