All Hail Creative Commons

Stanford professor and author Lawrence Lessig plans a legal insurrection

Hal Plotkin

Special to SF Gate

February 11, 2002

Stanford law professor and author Lawrence Lessig and a small band of collaborators at MIT, Duke, Harvard and Villanova are about to embark on a new endeavor that could help reignite the global high-tech economy.

A prolific thinker, writer and doer, and a national authority on intellectual-property law and a former columnist at The Industry Standard, Lessig is perhaps best known as the author of two of the most important books yet produced about computers, the Internet and how our legal system deals with them: "Code and Other Laws of Cyberspace," and his more recent work, "The Future of Ideas."

In an interview last week, Lessig confirmed the basic details about his latest venture, Creative Commons [ http://www.creativecommons.org/ ], which is slated to be formally unveiled in a few months.

In a boon to the arts and the software industry, Creative Commons will make available flexible, customizable intellectual-property licenses that artists, writers, programmers and others can obtain free of charge to legally define what constitutes acceptable uses of their work. The new forms of licenses will provide an alternative to traditional copyrights by establishing a useful middle ground between full copyright control and the unprotected public domain.

The first set of licensing options Creative Commons plans to make available are designed mostly for people looking for some protections as they move their wares into the public domain. Those protections might include requirements that the work not be altered, employed for commercial purposes or used without proper attribution.

Lessig adds that it's possible Creative Commons' licenses may eventually evolve to include options that permit or enable certain commercial transactions. An artist might, for example, agree to give away a work as long as no one is making money on it but include a provision requiring payments on a sliding scale if it's sold. As participation in the Commons project increases, a variety of specific intellectual-property license options will evolve in response to user needs, which in turn would create templates for others with similar requirements.

Within a few months, artists, writers and others will soon be able to go online, select the options that suit them best and receive a custom-made license they can append to their works without having to pay a dime to a lawyer, let alone the thousands of dollars it typically costs to purchase similar legal services.

"We also want to facilitate machine-readable languages," adds Lessig, who will be taking a partial leave from Stanford to help jump-start the Creative Commons effort.

In Lessig's model, an MP3 song or a document or any other intellectual property would contain a special machine-readable tag that specifies the exact licensing terms approved by its creator. That means film students making a movie, for example, could do a search, say, for jazz songs released under public domain-friendly licenses that they can use for their soundtrack without charge.

At the same time, Creative Commons also plans to build a "conservancy" to facilitate the preservation and sharing of intellectual property.

A Win-Win Proposition

In one masterstroke, Lessig and colleagues will empower creators of intellectual property by giving them more control over their work while also increasing the communal technical resources that contribute to innovation and growth. The result will be a new spark of life for the Internet, and for the tech sector in general.

Rather than abandon an outdated software program, for example, a computer company would have the option of donating its source code to the Creative Commons conservancy, where people could build on it to create other new and useful products.

Some of that activity, of course, is already taking place within the often-chaotic open-source software community. But many mainstream business executives have been reluctant to hop aboard the open-source bandwagon. Some of them have expressed fears that the origins and ownership of certain open-source code projects could eventually come into question. Many of them would prefer to play it safe, deal with proprietary vendors and not take any chances.

The Creative Commons conservancy will address some of those fears, in part, by providing access to more reliable legal protections that will make participation in open-source projects more likely. The implicit guarantees that usually accompany most open-source projects will be turned into the more explicit, ironclad licensing language that helps build confidence among information-technology professionals. Once an owner has formally conserved a piece of work, for example, any risks of inadvertent copyright infringement related to that work will be greatly reduced, if not eliminated entirely.

The project's backers hope that over time, companies and individuals may even receive tax breaks for donating works to the conservancy. That outcome could encourage the release of additional technical resources that everyone can use.

The Problem With Copyright Law

For years now, Lessig and other critics have maintained that inflexible copyright rules as they exist often just protect entrenched -- and usually uncreative -- interests at the expense of virtually everyone else, including many of those the copyright rules were originally supposed to protect.

He points out, for example, that when Congress first enacted copyright law in 1790, the protection extended for a term of 14 years, which could be renewed for another 14 years if the author was still alive. Congress has since increased that term to the life of the author plus 70 years. Given current life expectancies, that means a corporation can now bank on preventing a piece of intellectual property produced by a 30-year-old today from falling into the public domain for more than a century.

Lessig says such practices run contrary to one of the main reasons copyright law was conceived in the first place. Originally, he says, copyright and patent laws sought to balance two competing interests: protecting and rewarding innovators for their work, but also making sure innovations were available for reuse or repurposing by others after a reasonable length of time.

The rationale for that policy goes something like this:

The first person who figures out a new invention -- say, the wheel -- deserves to get rich. But that person should not have a right to prevent others from using his or her invention for so long that future progress is hampered. What's often missed by the most ardent private-property stalwarts (usually big-company lawyers, incidentally) is that the intended goal of the copyright system was to provide incentives for creativity not only for the originators of new ideas but also for others who want to use and build on those ideas in other ways.

Unfortunately, over the years concentrated financial interests have convinced Congress to steadily shift that balance. Privatized rights have won favor over the public interests that were once a far more essential aspect of copyright protections. That trend has only accelerated recently, as Congress has caved in to one demand after another from big media firms, Microsoft and others to "strengthen" copyright protections for a variety of high-tech digital goods.

On one level, the Creative Commons idea is all about commerce. But its deeper significance does not involve commerce in its usual form. Lessig isn't just trying to make his own cash register ring. Instead, his goal is to get millions of others ringing by making it easier to create new goods, products and services. In a larger sense, the goal is to make the world safer for innovators by nurturing the conditions that lead to economic growth and technological progress.

Not a Moment too Soon

In his most recent book, Lessig makes a convincing case that the health of the Internet and the tech sector in general is being choked off by increasingly successful efforts to erect proprietary bottlenecks that prevent competition. The most obvious example is Microsoft's Windows operating system, which remains the subject of federal antitrust litigation. But there are many other similar, although less well-publicized, cases that could prove equally worrisome over time.

A company called Thomson Multimedia, for example, owns patents to the popular MP3 digital music format. So far, the company has made it relatively easy for others to adopt the technology, which has facilitated its wide use and rapid acceptance. But like Microsoft, Thomson could decide at some future date that the time has come to more fully exploit its dominant position as the key enabler of online music-delivery systems. That uncertainty puts at risk the business plans of every company or artist that relies on MP3s, which is just one of the reasons there are so few investors interested in online music ventures these days. It's just too risky building a business in a sandlot someone else owns.

Lessig says the solution to that and other problems can be found in the age-old idea of the commons -- that is, the notion that society and the economy are better off when certain resources are protected and made freely available. Public streets, for example, provide accessible places where businesses can set up shop and where goods can be transported. Likewise, laws that prevented phone companies from discriminating between voice and data traffic allowed free use of those lines for other purposes, which in turn helped create the Internet.

The Creative Commons conservancy service is intended to extend that approach to as many other areas as possible.

"One of our goals is to lower the cost to give something away, and to make it harder for people to be ambushed [by proprietary claims]," says Lessig.

The result will be a more robust, healthier high-tech economy.

And this time, remarkably, a lawyer will actually deserve credit for helping make it happen.

Veteran Silicon Valley writer and broadcaster Hal Plotkin is also a contributing writer at Harvard Business School's publishing division.