Brave New World of Copyright

washingtonpost.com
Creative Commons Is Rewriting Rules of Copyright

By Ariana Eunjung Cha
Washington Post Staff Writer
Tuesday, March 15, 2005; Page E01

PALO ALTO, Calif. -- When Chuck D and the Fine Arts Militia released their latest single, "No Meaning No," several months ago, they didn't try to stop people from circulating free copies on the Internet. They encouraged it.

They posted the entire 3-minute, 12-second song and its various vocal, drum and guitar components online and invited everyone to view, copy, mix, remix, sample, imitate, parody and even criticize it.

The result has been the creation of a flood of derivative work ranging from classical twists on the hip-hop piece to video interpretations of the song. The musicians reveled in the instant fan base. They were so pleased that they recently decided to publish their next entire album, due later this spring, the same way, becoming the first major artists to do so.

"No Meaning No" was released under an innovative new licensing scheme called Creative Commons that some say may be better suited to the electronic age than the hands-off mind-set that has made copyright such a bad word among the digerati.

So far, more than 10 million other creations -- ranging from the movie "Outfoxed" and songs by the Beastie Boys to the British Broadcasting Corp.'s news footage and the tech support books published under the O'Reilly label -- have been distributed using these licenses. The idea has even won the support of Hilary Rosen, formerly of the Recording Industry Association of America, and Jack Valenti, the past head of the Motion Picture Association of America, who became known for their aggressive pursuit of people who share free, unauthorized copies via the Internet.

Interest in Creative Commons licenses comes as artists, authors and traditional media companies begin to warm to the idea of the Internet as friend instead of foe and race to capitalize on technologies such as file-sharing and digital copying.

Apple Computer Inc. gave many reason to be optimistic. Music lovers who once spent hours scouring the Internet for free, pirated copies of songs are now showing they are willing to pay for online music; the company says it is selling 1.25 million songs, at 99 cents a track, each day.

Rare is the consumer electronics company or music label that is not experimenting with something similar. Sony BMG, Universal Music Group, EMI and Warner Music Group, for instance, inked deals to distribute songs on a fee-based download service run by Wurld Media, a Saratoga Springs, N.Y., peer-to-peer software company.

At the same time, many of the innovators who touched off the file-sharing revolution are seeking to win corporate support for their work. Shawn Fanning, who as a teen developed Napster, is now working on software that would let copyright holders specify permissions and prices for swapping. Vivendi Universal is a backer.

Perhaps the most significant cooperative effort, however, is the set of innovative new licensing schemes under which "No Meaning No" was released.

The licenses are the brainchild of online theorist Lawrence Lessig, a Stanford University law professor.

Lessig argues that the current system of copyright laws provides little flexibility -- either you give up all permissions for use of your work or you withhold everything. He proposed a solution: a set of copyright licenses that would allow artists to choose to keep "some rights reserved" rather than "all rights reserved."

They could, for instance, choose to allow their works to be enjoyed and copied by others for any purpose, restrict such activity to non-commercial use or allow use of portions of the work rather than all of it. To that end, Lessig co-founded the nonprofit Creative Commons, whose aim, as he describes it, is to "help artists and authors give others the freedom to build upon their creativity -- without calling a lawyer first."

What began as an offbeat legal experiment is now prompting people to reconsider the notion of copyright.

"What we're doing is not only good for society but it's good for us and our business because we get our music out," said Brian Hardgroove, 40, the co-founder of Fine Arts Militia and the band's bass player.

The way Lessig sees it, art has always been about stealing, recycling and mixing: Vincent Van Gogh and Paul Gauguin were said to borrow from each other's brushwork. The 1990s hit "Clueless" with Alicia Silverstone was a modern-day adaptation of Jane Austen's "Emma."

Technology has given the world an unprecedented ability to digitize works, copy them, take them apart and put them back together again. But Lessig said he worries that the extension of copyright laws is keeping many works out of the public domain, hampering creativity. When the Constitution was written, copyrights covered 14 years, extendable to 28 years. Now, with the passage of the Sonny Bono Copyright Term Extension Act of 1998, these rights last until an author's death plus 70 years.

Lessig's goal with Creative Commons was to create a body of digital work, which he calls "artifacts of culture," for the public domain, accessible to all.

In the year since the licenses were unveiled, a steady stream of works beyond popular music and videos has joined the Creative Commons public domain archive: material for more than 500 Massachusetts Institute of Technology classes, audio of every U.S. Supreme Court argument since 1950 from the Public Library of Science, the archives for Flickr's photo-sharing site, and Cory Doctorow's futuristic novel "Down and Out in the Magic Kingdom."

The book's first hardcover run was a sellout -- 10,000 copies in all -- in bookstores, but the number of free electronic copies distributed was much greater. Half a million copies of the science fiction novel were downloaded.

"There is this weird sense that the Internet is broken because it lets people make easy copies. . . . The Internet is a machine for making copies, and artists need to come to grips with that," Doctorow said.

Doctorow's experiment with his first novel went so well that he released his second one, "Eastern Standard Tribe," under a Creative Commons license and hopes to publish a third this spring the same way.

"At every turn in history we see this new model of distribution that people say is going to destroy art itself," Doctorow said. But, he said, such fears been proved wrong time and time again.

Fritz Attaway, Washington general counsel for the Motion Picture Association of America, said work licensed under Creative Commons licenses and those released under traditional copyright restrictions can coexist.

"I think it's helpful to educate consumers that there is a place like Creative Commons where one can access intellectual property that has been freely made available to the general public without compensation and that that should be distinguished from sites that are permitting access to infringing material," he said.

Still, even the most optimistic say that Creative Commons will be only part of the solution to ending the long-running battle over copyright. Attaway said he doubts the major movie studios or record labels would ever license large quantities of their work for distribution using Creative Commons licenses because they make plenty of money off the current system.

Hollywood producers Robert Greenwald and Jim Gilliam are among those challenging such assumptions. They released their movie "Outfoxed" under a Creative Commons license. Their controversial documentary accused Fox News of being a propaganda machine for the Republican Party. Just weeks after it was released in theaters, the producers posted 48 minutes of original interviews from the work online.

Gilliam credits the Internet with boosting interest in the movie because it reached a wider audience than it could in theaters alone. He said many of those who viewed parts of the work online ended up ordering a $9.95 DVD.

"This isn't necessarily just some altruistic thing," Gilliam said. "You can make money off of this, too."

It is not always easy for consumers to know when a work is protected by a Creative Commons license. If the work does not identify itself as such, online users can go to CreativeCommons.org and search its archives. In a few months, the developers behind the new Mozilla Firefox browser plan to release an update designed to allow people to search the Web for works of art licensed by Creative Commons.

John Buckman, an entrepreneur from Berkeley, Calif., has used the Creative Commons licenses as the foundation for his new online record label. All artists who sign with his company, Magnatune, must agree to allow free use of their work for non-commercial purposes. The site features 326 albums by 174 artists in six different genres, including classical and heavy metal. He said the company makes 50 percent of its money from downloads and 50 percent from licensing fees.

He said his label's songs are attractive because cash-strapped filmmakers can use the songs as they like for free and have to pay only when they start making money. "As much as musicians are having a hard time making a living, filmmakers and other creative people are having a hard time finding music to use in their works," he said.

And the start-up is making money, he said -- possibly as much as $2 million this year.

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