The Quarto tracked down Lawrence Lessig, Stanford law professor, founder and chairman of Creative Commons, and free culture smith, in a lull at the end of a long December day in 2004. In a whirlwind session, he talked to us about copyright, copyleft, barriers to free culture, legal pitfalls for Wikipedia, and fighting the good fight.
Collective Works and the Copyright Frontier
Some of the most frequent questions Wikipedia users have are about copyright: how will their current work be reused?; what are the greatest long-term risks to simple reuse of collective content?; and what can we do, now, to reduce those risks?
LL: The greatest long-term risk would be a series of legal decisions that throw into doubt, the ability of the project to rely on the collective assignment [of] rights. And, I think the way you deal with that is to figure out the FDL structure that best facilitates that collective assignment of rights. I know there are projects and study groups that think about that.
How did you conceive of the idea for the Creative Commons?
LL: We recognized how the internet and the way the law's structure was going to interact... in a way that would presumptively make a whole pile of material unavailable, when the intent of the copyright owner or the intent of society should be to make it available. So, we were trying to be creative about how to solve this legal problem produced by the unintended consequences of the way the law was architected.
When Wikipedia was starting, Creative Commons licenses didn't exist yet. Was it already obvious, then, that new types of licenses would be needed?
LL: The objective of copyright law is primarily to help creators do what they want to do. I think it was obvious that the default way copyright law functioned would not encourage enterprises like Wikipedia, but that you could supplement copyright law with licenses the [same] way Richard Stallman tried to supplement software copyright law. I don't think it was an indictment of copyright law that its default mechanism didn't facilitate this amazing new capacity.
But, enterprises like Wikipedia strain copyright law, certainly. It is hard to express the understandings of the people participating in the construction of this creative work, and nobody understands how the work will develop and change.
For example, in Germany, a copyright owner can't sign away rights to technologies that don't exist. In the US, we have clauses like, "I'm signing away my rights to all technologies now known or ever to be discovered..."; this is not possible in Germany. On the one hand, that's a good thing; because you have to go back to the author to get permission for some new use, something of great value to the author.
But, in the context of Wikipedia, if you have to go back to clear rights for every new technology that comes along, part of the objective of the authors is defeated. So, there's a need for copyright law to reflect this. There's no reason, in principle, that it can't, so long as we move to reasonable or balanced discussion about copyright law, as opposed to the extremist views that dominate the debate right now.
Copyleft, Trademarks and Free Culture
Is the growth of the copyleft movement another force advocating for permanent extensions to copyright law?
LL: That is an interesting consequence of copyleft. In a theoretical sense it is quite important... because the side of freedom seems to benefit from the side promoting control.
There's another sense in which that paradox is always going to be part of the copyleft movement. I described [elsewhere] how there is this radical change in the scope of copyright law effected by moving to a digital network. It's only because of this radical change in the scope of copyright law that projects like Creative Commons can get going. You wouldn't be able to attach a Creative Commons statement to a book in realspace, and say, "if you read this book, you have to do it Share-and-Share-Alike," and expect it to have legal force -- the only way that *could* have force, is if there was a contract entered into every time you opened a book, and there's no grounds to believe that.
But, because on a digital network every use of a creative work produces a copy, there is a foundation upon which to insist on a license every time you use the work; that's where the Creative Commons license gets its power.
So on the one hand, many of us are very skeptical about this explosion of copyright regulation. But on the other hand, we take advantage of it in Creative Commons. [laughs]
With licenses like Creative Commons/GFDL, we get away from some copyright barriers. Do you see other barriers to the growth of free culture, in law or in culture?
LL: All of the problems that exist for free software will increasingly be problems for free culture. The most prominent is software patents, which will increase the coordination costs of software development projects in a way that favors proprietary projects.
Another huge problem will be trademark, an area of law in radical need of updating in light of new technologies. You see this in eBay auctions: people auction their Rolex watch, Rolex says, "you can't do that, you're infringing our trademark...". The law compels Rolex to defend their trademark or lose it, so in some sense they're forced to take that ridiculous position. But in some cases they like taking that position, because that protects them from competition.
This could affect projects like Wikipedia, especially as Wikipedia becomes more ambitious in the types of media it provides and the access it affords. I think that [legal] irrationality, or trademark law that is out of tune with the technical framework, will provide danger to Wikipedia much as it provides it to the libraries of free culture.
Is there anything we can do to forestall that?
LL: Not really. The problems with trademark beg for legislative and judicial correction. There are certainly steps (which it's not appropriate [for me] to advise about) -- there are steps you could take to minimize exposure, but on the other hand there are steps we ought to take to change the legal rules, to make them make more sense.
Unlike CC licenses, the GFDL is only officially in English; do you see this as being harder to scale to hundreds of different municipalities?
LL: Obviously, I agree with the substantive objectives of GFDL. My personal view (there's disagreement about this) is that GFDL is optimistic that it can apply internationally without trouble by insisting on an English [license] requirement.
How do big organizations like the UN deal with this?
LL: A better analogy : how does Microsoft deal with this? Microsoft has licenses which it attaches to its software... designed to be universally applicable, but also localized, depending on where you're from. It's dealing with it in a similar way that [Creative Commons is] dealing with it. The objectives of the licenses are very different, but our reaction to the legal reality is fundamentally the same.
Wikipedia, Cultural Content Reuse
How did you first discover Wikipedia as a site? What was your initial reaction?
LL: I remember spending an extraordinary amount of time for me (an hour, two hours) just wandering through Wikipedia when I should have been doing other sorts of work, trying to figure out how it was working, who was doing it, and what made it function. It was one of those "Aha!" moments in experiencing the Net - people always said this sort of thing would be possible, and here it was, happening. And happening with much greater success than people would have predicted ex-ante. It was an extremely exciting moment.
LL: It depends on how you mean 'reuse'... In the sense of taking media content and remixing it, we're just beginning to see a lot of that. But that's because the technology is just beginning to penetrate. It's going to take time before people feel comfortable with that.
That's beginning to change, as archive.org and similar sites make content available and people begin to use it in really powerful ways. The more that happens, the easier it will be for people like me to argue [in advocating changes to copyright law], "this is an important part of culture."
CC vs GFDL, CC and WP
Creative Commons and GFDL are similar in spirit, but not technically compatible. Do you see merit in making them compatible? Or do they serve different purposes?
LL: At the level of abstraction we typically think about, to the extent that we are talking about free licenses, there is perfect compatibility between the objectives of GFDL and of Creative Commons licenses. Right now they technically don't interoperate... It would be great if we could make them all interoperable.
How long will it be before we can have this kind of interoperability?
LL: The hard thing for a project like Wikipedia is the retroactive part -- to what extent can we conform the old with the new? From the standpoint of "when will we have the tools to [create new content] in a cross-platform-compatible way?" (where 'platforms' mean different free license platforms), I expect within 6-8 months we'll have that technology built in.
Wikimedia develops lots of content, but few people gain any reputation; the Creative Commoners you talk about are creative artists striving for reputation. Do you think these are paths to different creative cultures? Will there be a merging of the notion of the individual creator, with that of people contributing to a whole?
LL: I don't see them to be as distinct as that question presumes. You can look at somebody like Louis Armstrong and say "Wow, wasn't he amazing?" Or you can look at jazz, and say, "Isn't jazz amazing?" And its amazingness is constituted in part by particular people like Louis Armstrong. I think that's similar to what you see if you look at Wikipedia vs. what Creative Commons is typically describing.
Because Wikipedia is jazz, it is amazing -- the product of innovation, and "building on top of," in exactly that way. It is harder to be a particularly great jazz musician within that tradition, harder to be noticed, but I'm sure you could point to particular people (I don't know who they are) who have done the most amazing work within that particular genre.
We're both building great genres one creator at a time. Depending on the project, you might be more astonished by the collective product, or by the individual contributions to it.
CC version 2 has attribution as a fixture, not an option. Is part of our culture changing its notion of authorship?
LL: Creative Commons has not been building licenses so far to deal with this idea of collective authorship. But we are spending a lot of time thinking through what the appropriate CC-like license is for projects like this.
You could think of a CC-wiki license which would be a form of work-for-hire but not in the traditional sense. That's something we're thinking about and obviously eager to provide if the market of free culture has a strong demand for it.
You try passionately to change the law in a number of ways, in court and with the Creative Commons. Do you see the efforts to change free culture through Creative Commons as more promising than going through the courts?
LL: Multiple strategies are essential. Nothing in Creative Commons insists that people agree with me about copyright terms, or about problems of over-extensive rights being granted by Congress. So we can get allies in the context of the free culture who think of me as the devil in the context of copyright regulation. That's important, because it reflects a basic humility about the law which I think we all should admit: none of us really knows what is the best thing here.
But it also permits different movements to be understood differently. The free culture movement, driven by a bunch of students and projects around the country, is different from Creative Commons, and that's different from what I do at the Center for Internet and Society. We don't demand a loyalty test across all of those things.
There has been some discussion recently among Wikimedia volunteers about the Foundation getting involved with political advocacy...
LL: I don't know enough about the dynamics of the Wikimedia Foundation. It's not obvious that an organization as successful and as powerful as the Wikimedia Foundation in the context of building free culture, should (or shouldn't) take on the very difficult and alienating and divisive battles around the copyright wars. I think it's a question that needs to be addressed after a lot of consideration, and not just on the basis of what particular people think is right.
Case of Evil
Thank you. Finally, on a lighter note: if you woke up tomorrow with a bad case of EVIL, what legal mechanism would you use to try to bring Wikipedia down?
LL: <ponders> One of the hardest features of copyright law, for projects like Wikipedia, is the international variability of copyright terms. You could exploit that to create great liability for Wikipedia by finding content which is only free in some jurisdictions... and then use other jurisdictions to shut it down.
You'd have to really want to do it, and that is the great structural protection that Wikipedia has. There might be particular people who don't want their work used, and they'll complain and you'll have to take out their content. But there is no strong enough enemy who would craft a strategy to do it. I think Wikipedia can survive local problems, and won't have a generic evil opponent.
Thank goodness. And thank you for your time!