Social Life of Information

Radical militant librarians are out to destroy the music industry. Or at least, that’s what you might come to believe if you listen to the RIAA’s arguments. The recording industry and other corporate lobbies have convinced policymakers for decades that intellectual property protections are necessary to motivate the production of creative works. Without copyright to protect authors, they claim, the production of creative and cultural artifacts will cease. While legal decisions extending copyright terms have continued to support this purely conjectural economic argument for extended copyright terms, there is a mounting body of empirical evidence that undeniably demonstrates that this economic argument is fundamentally flawed. The Free Culture movement has recently emerged in response to increasingly restrictive intellectual property protections. Associated with the Creative Commons (CC) and its founder, the well known Stanford law professor Lawrence Lessig (who has, incidentally, authored a freely-available book by the title Free Culture), the Free Culture movement extends the ideals of the free software movement to other creative and cultural works.

The free software movement, from which the Free Culture movement draws its inspiration, was the brain child of a famously radical militant hacker, Richard Stallman, known in the hacker community as “RMS.” Hackers like RMS are computer aficionados who enjoy complex problem-solving and tinkering; when software suddenly became a proprietary commodity in the 1980’s, RMS saw this as a hegemonic threat to hackers’ right to access the means of self-improvement (for a hacker, that’s source code) and founded the Free Software Foundation in reaction. Because he realized that elimination of the current intellectual property legal system was an unrealistic short-term goal, RMS crafted a solution in typical hacker fashion, working within the constraints of the legal system by create the General Public License, or GPL.

The GPL itself is an instantiation of copyleft, a general concept dating back as far as 1976, when a computer hobbyist publication produced a code entry that included the message “@COPYLEFT ALL WRONGS RESERVED”. An alternate origination story for copyleft credits the Principia Discordia (fourth edition, circa 1970) for using the term “kopyleft” with the note, “All rites reversed – reprint what you like.” Copyleft has since solidified into an intellectual property licensing practice, and has emerged as a tactic for using copyright law to ensure that works are free to use. Copyleft licensing makes it legal to freely share, modify, and distribute the work, with the single but significant restriction that the same so-called unrestrictive license is preserved in derivative works.  This final condition is what made copyleft such a radical tactic for a knowledge production industry, such as software development. The GPL is sometimes known as a “viral” license, implying negative connotations to the condition that the freedoms it guarantees are transmitted to any derivative works. In this fashion, the GPL in particular is a paradoxical tactic: it guarantees freedom to an intellectual work and any works that are based on it, but because the license must be included in derivative works, the actual uses of GPL licensed work are restricted to those for which GPL licensing is considered acceptable, which limits usage. In short, its explicit unrestrictiveness is implicitly restrictive.

The Creative Commons has developed and actively promotes several other alternative licenses that offer creators a range of choice for determining how their work may be used. CC licenses, sometimes called artistic licenses, apply a set of four usage conditions, including attribution, noncommercial, no derivatives, and share alike, all of which are explained in plain language. Combining these conditions for several variations, the CC has created a set of 6 licenses to cover a wide set of creative licensing needs, and swift adoption has been spurred by Web 2.0 sites that depend on user contributions, such as Flickr, a popular photo sharing site. Flickr’s implementation of CC licensing options for user contributions of photography allows artists to specify conditions for use; combined with a CC image search, Flickr now provides a valuable commons-based resource for photographic art. Copyleft was once an unusual and radical tactic, but with dissemination of the tactic in the popular media, it is becoming an everyday and even mainstream practice.

Will copyleft ever put copyright out of business? It’s unlikely, and not even necessarily desirable; copyright is in fact a part of American heritage.  Thomas Jefferson’s vision for copyright, embedded in the first article of the Constitution, was intended to promote innovation through short-term protections for individual creators with respect to publication. The 1909 Copyright Act changed matters by changing wording, so the initial restrictions on “publishing” were transformed to instead prohibit “copying,” which is a far more limiting interpretation of the protection of intellectual works. Today, copyright terms in the US are the duration of the original author’s lifetime, plus 70 years. Extension after extension of the duration of copyright terms have resulted in a situation where very few works will be entering the public domain any time soon. The Free Culture movement hopes to change that, and one very successful tactic has been promoting copyleft as an alternative. In a best case scenario, copyright durations might someday be reduced to a 14-year tenure, empirically shown to be an appropriate length based on the purported goals. Reversing copyright scope creep in the US legal system will require a long-term effort from the Free Culture movement.

The increasing complexity of the intellectual property landscape will eventually come to a breaking point; legal cases involving copyright are notoriously expensive and difficult to settle, and the new profusion of alternative licensing options serves to further complicate the situation, despite the relative clarity of the CC licenses themselves. And these licenses have been adopted in an economically significant fashion. An amicus brief submitted for a recent federal appeals court decision pointed out that millions of works have been released under copyleft licenses, affecting such organizations as MIT, IBM, Wikipedia, numerous free software projects and many businesses; upholding a lower court decision that threatened copyleft enforceability would therefore be enormously disruptive. The Federal Circuit ruled that violating copyleft is equivalent of copyright infringement, rendering copyleft license enforceable. This decision is already seen as a significant victory for proponents of copyleft. Despite its relative newness, the Free Culture movement is already creating change.