Commonists

The individuals in the third group have varying motives for using open content licenses. Some of them see the copyright system as a cultural lock that limits their creativity and human’s natural need to help their neighbors. They fight the enclosure by licensing their works with open licenses.¹⁴² I call this group Com-monists.¹⁴³ The group sees the Internet as the final frontier where humankind should find ways to share rather than create another area of exclusivity. For them the choice of using open licenses is as much moral and ideological as it is practical.

Copyright professionals have experienced the rise of open licensing and found some difficulties in competing with freely available products.¹⁴⁴ One easy way to degrade the new competitors is to label the people supporting it as being for an anti-market economy. Such a tendency is visible in Bill Gates’s critique:

”…new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist.”¹⁴⁵

Gates is not alone drawing a parallel with the commons movement and the old communist system. Some supporters of the movement are doing the same. Dan Hunter suggests that the adherents of the movement are “Marxist-Lessigists.”¹⁴⁶ Law professor and Free Software Foundation’s lawyer Eben Moglen has gone as far as a writing a dotCommunist Manifesto where he declares the digital class struggle.¹⁴⁷ Comparing communism to the commons movement is easy as

142 Coates, supra note 106, at 79 (“The Creative Commons community is often typified as being made up of idealistic individuals, who are using the licences not for any practical purpose but because of a personal adher-ence to counter-culture or open source principles.”).

143See also Richard Barbrook, Communism, How the Americans Are Superseding Capitalism in Cyber-space, http://www.imaginaryfutures.net/2007/04/17/cyber-communism-how-the-americans-are-superseding-capitalism-in-cyberspace/.

144 Dan Hunter & F. Gregory Lastowka, Amateur-to-Amateur, 46 WM.&MARY L.REV. 951, 1029 – 1030 (2004).

145 Michael Kanellos, Newsmaker: Gates taking a seat in your den, CNET NEWS.COM 5.1.2005 at http://www.news.com/Gates-taking-a-seat-in-your-den/2008-1041_3-5514121.html.

146 Dan Hunter, Culture War,83 TEXAS LAW REVIEW 1105, 1105.

147 Eben Moglen, The dotCommunist Manifesto, http://emoglen.law.columbia.edu/publications/dcm.html (2003); see also CHRIS ANDERSON,LONG TAIL,WHY THE FUTURE OF BUSINESS IS SELLING LESS OF MORE 62 (2006).

munism offers a readily available connotation of challenging big wealthy capi-talists and overturning the economic status quo.¹⁴⁸

The free sharing ideology has used copyright and “ShareAlike” and copyleft licenses to further advance their objectives. Copyleft licenses make sure, that if the licensees modify the work and distribute the modified work, the modified work will carry the same copyleft license terms as the original work had. The free software community is using copyright licenses to preserve the freedoms they value. Preserving property in order to advance the greater good of the community resembles a foundation or a trust fund institute. Instead of investing the property in stocks, the free software movement is using its licenses to invest in new free software products, which further benefit the community.

Maybe Gates’s notion of communism is not totally without merits. Milton Mueller points out that communalist ethical norms and non-exclusive property relations are somehow fusing with copyright protection and individual choice to participate.¹⁴⁹ Joseph Schumpeter’s well known idea of capitalism’s ‘creative de-struction’, where new ideas destroy the old ones¹⁵⁰, seems to resemble socialism in that it may destroy some of the production models of capitalism. The socialist countries’ experiments in the previous century showed that communism is but a dream when it comes to tangible property. The public good nature of digital works, private ownership of rights, ICT technology and the voluntary nature of the ‘new commons’ may turn out to make a difference that makes the movement stronger than the communist movement was.

Is there a reason to dispel the comparison that Gates made? Existing labels enable movements to define the “us” and “we”.¹⁵¹ On the other hand, using strongly charged symbols like communism can reshape the movement to some-thing that it was not originally. Creative Commons was quick in rebutting Gates’s accusation.¹⁵² Creative Commons’ CEO Glenn Otis Brown stated that:“Bill Gates is too smart to confuse a voluntary, market based approach like Creative Commons with a statist, centrally planned economy”¹⁵³ and reminded

148 Milton Mueller, Info-Communism? Ownership and Freedom in the Digital Economy, 13FIRST MONDAY (2008), http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2058/1956.

149 Mueller, supra note 148.

150 JOSEPH A.SCHUMPETER,CAPITALISM,SOCIALISM AND DEMOCRACY 81 – 86 (1942); see also CLAYTON M.

CHRISTENSEN, THE INNOVATOR’S DILEMMA:WHEN NEW TECHNOLOGIES CAUSE GREAT FIRMS TO FAIL (1997).

151 SIDNEY TARROW,POWER IN MOVEMENT:SOCIAL MOVEMENTS AND CONTENTIOUS POLITICS 21 – 23 (1998); see, e.g., Moglen, supra note 147 (confronts capitalism with free information “A Spectre is haunting multinational capitalism--the spectre of free information.”).

152 See also Richard Stallman, Copyright and Globalization in the Age of Computer Networks, in CODE:

COLLABORATIVE OWNERSHIP AND THE DIGITAL ECONOMY (ED.RISHAB AIYER GHOSH) 317, 328-329 (2005) (claims that it is the maximalists that are taking the “Soviet Approach”)

153 Glenn Otis Brown, Response to Bill Gates, Jan. 9, 2005, http://creativecommons.org/weblog/entry/5223.

of “how many creative people's lives were ruined by irresponsible name-calling not too long ago. Remember the Hollywood blacklists?”¹⁵⁴ Lawrence Lessig re-sponded in the Wired-magazine: “Copyright reform advocates are "common-ists," not "communists."”.¹⁵⁵ Lessig’s response is cunning as it creates a new word that resembles the old but at the same time enables to give the word new connotations. Mueller acknowledges that it is better to create the movement’s identity based on a new approach to the property–commons relationship than to align it with historical identities based on traditional left–right dichotomies.¹⁵⁶

Figure 2. ‘Creative Commonist’ -logo by Xeni Jardin.¹⁵⁷

While some of the research shows that the idealists are less productive members of the community when it comes to creating content,¹⁵⁸ they help to nourish the open content ecosystem by building services that enable others to enjoy the free-dom of sharing. At the same time, they may harm the spreading of the move-ment by creating tension and confrontations between the right owners who want to keep all rights reserved and the ones that may want to share.¹⁵⁹ Creative Commons has received critique from the ideologists for not stating the ideologi-cal principles of the movement clearly enough.¹⁶⁰ Partly the critique misses its

154 Katie Dean, We're Creative Commonists, Bill, WIRED MAGAZINE, Aug. 1, 2005, available at http://www.wired.com/culture/lifestyle/news/2005/01/66209.

155 Id.

156 Mueller, supra note 148.

157 Xeni Jardin, Bill Gates: Free Culture Advocates = Commies, BOING BOING BLOG Jan. 5, 2005, http://www.boingboing.net/2005/01/05/bill-gates-free-cult.html.

158 Nov, supra note 83, at 63 (the ideological motivation level is not significantly correlated with the contribu-tion level).

159 See also Kimberlee Weatherall, Would you ever recommend a Creative Commons license, 4 AIPLRes (2006) available at http://www.austlii.edu.au/au/other/AIPLRes/2006/4.html (discusses the problems that CC has had with its rhetorics and hype).

160 David Berry & Giles Moss, On the “Creative Commons”: a critique of the commons without commonalty;

Is the Creative Commons missing something? 5 FREE SOFTWARE MAGAZINE (2005) available at

http://www.freesoftwaremagazine.com/articles/commons_without_commonality?page=0%2C0; see also Ri-chard Stallman, Fireworks in Montreal, FSFBLOG, http://www.fsf.org/blogs/rms/entry-20050920.html (Sept.

20, 2005).

target as CC has tried to serve the wide field of licensors by providing a set of licenses ranging from somewhat restrictive licenses all the way to public domain dedications. The CC’s share-alike licenses are the ones that are suitable for spreading the ideology of freedom in a way that the Free Software Foundation is doing with the GPL license. However, CC is also serving licensors who are not interested in the class struggle rhetoric or revolution but want to find a way to create and use licenses that are less restrictive than all right reserved but still re-serve more control than copyleft licenses provide. It is easy to concur with Muel-ler’s conclusion that the movement’s role should be to make the “choice availa-ble, to publicize it, and to protect it against illegitimate or destructive forms of appropriation”. The viewpoint is different if the movement is seen as a way to optimize the copyright system for the whole of society or if it seen as a way to optimize rights owners’ copyrights. The first point of view might justify posing restrictions on works with ShareAlike and copyleft licenses. The second view-point would value the rights owners’ freedom to choose other more or less re-strictive licenses as well. CC’s choice to take the more individualistic approach takes the movement away from the Marxist-Leninist control system toward the liberal market economy.¹⁶¹ The view that CC has chosen is that information commons are a vital and constructive part of a free and open market economy - not its enemy. The approach is more co-operative than revolutionary. CC is working with the content producers to change gradually parts of the system to include openness. Confrontations do not help companies to accept openness.

However, the openness might just be what firms need. Tapscott and Williams observe that without commons there could be no private enterprises.¹⁶² Having a friendly inclusive message for commons that enables profit organizations to join the movement at some level might yield better results than a strict ideological revolutionary movement. Since Gates’s outburst, Microsoft and CC have worked together and incorporated the licensing engine into Microsoft’s Office package.¹⁶³ The plug-in has a lot to improve on, but it sends a message that Mi-crosoft supports CC licensing with its products.

While the Commonist group sees sharing as a moral obligation, its members rarely want to completely dismantle the copyright system. The wish to share can also be limited, as it is with a sampling community. Sampling is a technique used in music making where small pieces of music, which do not get the protection of

161 Mueller, supra note 148 (sees it as an extension of the market economy system).

162 TAPSCOTT &WILLIAMS,supra note 89, at91.

163 Press release: Microsoft and the Creative Commons release Tool for Copyright Licensing June 20, 2006 available at http://www.microsoft.com/presspass/press/2006/jun06/06-20MSCreativeCommonsPR.mspx

copyright, are combined to create sound collages.¹⁶⁴ Sampling entails the incor-poration of short segments of prior sound recordings into new recordings.¹⁶⁵ While sampling may not infringe copyright¹⁶⁶, it in most cases does infringe neighboring rights, and especially the rights of the owners of sampled sound re-cordings.¹⁶⁷ Legal sampling would require permission from the record compa-nies of all sampled works. This has made legal costs of sampling high.¹⁶⁸ Many in the sampling community support allowing the transformative use of pieces of works but see that copying and distribution of the entire work should be for the rights owner to decide. This community holds on to the copyrights but grants a right to use the neighboring rights for remixing. In 2003, Creative Commons created licenses in collaboration with the experimental music collective, Negativ-land.¹⁶⁹ The sampling licenses enable the use of pieces of works, but reserve oth-er rights.¹⁷⁰ CC targeted the sampling licenses especially at hip-hop’s remix community that has been borrowing riffs and beats without asking permission for decades.

164 See, e.g., Matthew Rimmer, The Grey Album: Copyright Law and Digital Sampling 114 Media Interna-tional Australia 40 (2005), available at http://ssrn.com/abstract=648323; and SIVA VAIDHYANATHAN,THE ANARCHIST IN THE LIBRARY :HOW THE CLASH BETWEEN FREEDOM AND CONTROL IS HACKING THE REAL WORLD AND CRASHING THE SYSTEM 104 (2004) (states the most interesting and entertaining phenomena of the MP3 peer-to-peer is the availability of ““mashes” — new compositions created by combining the rhythm tracks of one song and the vocal track of another.”); Lionel Bently and Brad Sherman, Culture Of Copying : Digital Sampling And Copyright Law, 3 ENT.L.REV. no. 5, 158 – 163 (1992); DON TAPSCOTT &WILLIAMS, SUPRA NOTE 89,at136–141; Damien O'Brien, & Brian Fitzgerald, Mashups, remixes and copyright law 2 Internet Law Bulletin, 17-19 (2006).

165 Newton v. Diamond, 349 3d 591, 596 (9th Cir, 2003).

166 Newton v. Diamond, 349 3d 591 (9^th Cir, 2003) (Majority held that the Beastie Boys who had licensed the rights for the sound recording for sampling was within de minimis rule and thus it did not infringe the plain-tiff’s copyright.)

167 Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) (“[I]f you cannot pirate the whole sound recording, can you “lift” or “sample” something less than the whole. Our answer to that question is in the negative.” And later “[G]et a license or do not sample.”)

http://fsnews.findlaw.com/cases/6th/04a0297p.html; see also Tim Wu, Jay-Z Versus the Sample Troll, The Shady One-man Corporation That's Destroying Hip-hop, SLATE.COM (Nov. 16, 2006),

http://www.slate.com/id/2153961/ (describes the background of the case). Fair use may permit otherwise re-stricted uses, see Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F. Supp.2d 84, 93 (S.D.N.Y.

2003) and Campbell v Acuff-Rose Music Inc 510 U.S. 569 (1994).

168 LESSIG,supra note 103, at 285; see also Brian Fitzgerald and Damien O´Brien, Digital Sampling and Cul-ture Jamming in a Remix World: What Does the Law Allow?, in OPEN CONTENT LICENSING:CULTIVATING THE CREATIVE COMMONS (BRIAN FITZGERALD ED.2007) 168 – 169 (analyzes the recent decisions to remixing community.).

169 Negativland website, http://www.negativland.com/ and Matt Haughey, Creative Commons and Negativ-land Begin Work on Free Sampling and Collage (May 30, 2003)

http://creativecommons.org/press-releases/entry/3707; see also Rimmer, supra note 164, at 44 – 45 (discusses Negativland’s history of litigation);

see also Negativland, Two Relationships to a Cultural Domain, 66 LAW &CONTEMP.PROBS. 239 (2003) (explains Negativland’s view on culture and sharing).

170 See, e.g., Creative Commons Sampling Plus 1.0, http://creativecommons.org/licenses/sampling+/1.0/.

Creative Commons has also helped to create the ccMixter¹⁷¹ website that helps remixers find and share songs and samples. ccMixter enables remixers and authors to share their works and build upon other users’ works. In a ccMixter user survey, 87% of the respondents saw that the key feature of the ccMixter is the legality of remixing.¹⁷² ccMixter has placed emphasis on letting users see how users are building the songs from different samples.¹⁷³ Users can find other artists who have used the same samples and artists can see who has used their samples.¹⁷⁴ The system takes advantage of the non-rivalrous nature of copyrights and the increasing returns of network effect. The more people who remix the works, the more demand there will be for the work.