In the copyright war, Creative Commons seeks the middle ground between total control and total mayhem.

“MMM … FREE SAMPLES!” 

From an office in the basement of Stanford Law School, Glenn Otis Brown posted that message on the Web on March 11 to announce his latest project. The goal? To make it easier for the author of a work, regardless of the medium, to give permission to others to reuse that work in a book, a collage, a remix, or a film. 

Brown spent the next few weeks preparing a copyright license that automatically permits “sampling.” The 226-word first draft was produced with pro bono assistance from Catherine Kirkman ’89, an intellectual property lawyer at Wilson, Sonsini, Goodrich & Rosati. It was, in some respects, the sort of technical, legalistic task that makes up the bread and butter of a corporate IP practice. “Subject to the terms and conditions of this license,” it begins, “licensor hereby grants you a worldwide, royalty-free, non-exclusive, perpetual … license to exercise the rights in the Work as stated below.”

But the sampling license then veers off into uncharted territory, becoming almost a Dadaist manifesto expressed in copyright lingo. It essentially gives a green light to those who wish to use the licensed art to create a “derivative work,” while denying permission to others who merely are trying to profit from copies. In Brown’s eyes, this is more than just another license or an academic exercise: it’s a step toward building a movement to protect and to expand the public domain-and freedom of expression. 

Brown, a soft-spoken 29-year-old Texan with a Harvard Law degree, is the executive director of Creative Commons, a nonprofit organization that Stanford Law Professor Lawrence Lessig helped establish two years ago. The group aims to build an alternative to what it contends is an increasingly restrictive copyright regime. “Copyright that’s moderate,” Brown explains in an interview in July. “An alternative to either mayhem or total control.” 

The interest in developing a sampling license, for example, arises from the difficulties that artists now face in “borrowing” from the works of others. Although incorporating and building on the contributions of previous generations is a time-honored practice, it increasingly requires talking to a lawyer, filling out forms, detailing the use, and paying a fee before approval is granted. Many artists ignore the bureaucracy and take their samples, figuring that such use is permitted under copyright law. Indeed, in many cases, no problem arises. But many others are threatened with lawsuits unless they desist. 

“There’s this huge gray area that’s hard to predict,” Brown says. “Are we comfortable with saying that a large percentage of the culture being created today is illegal?”

Some rights reserved.

Those three words may be the quickest way to sum up the Creative Commons philosophy. If the battles over downloading music for free from the Internet have often turned copyright on its head, Creative Commons is turning copyright on its side. Creative Commons accepts the idea that some people are going to want the full range of protection- “all rights reserved”-while others will opt for no protection at all. Creative Commons seeks to provide a voluntary option for those who fall in the middle. 

The group was established in 1999 after Eric Eldred, who had created an online library for texts of books in the public domain, suggested it to Lessig. The cyberlaw expert was already representing Eldred in a challenge to the most recent extension of the copyright term. (The Supreme Court rejected that challenge in January 2003.) But even before that defeat both men had recognized that preventing a longer copyright term was, by itself, insufficient to build a strong public domain. Lessig, who is also the founder of the Stanford Law School Center for Internet and Society, agreed to serve as Creative Commons’s chairman. 

Creative Commons allows creators of intellectual property to obtain online a license that they can append to their work. Instead of using the traditional copyright symbol, those who adopt a Creative Commons license mark their work with a circle surrounding two C’s. Although these licenses come in various flavors, they all specify ways in which the work can be copied and reused. And the distinctive licenses not only come in both lay-language and technical-legalese versions, but also in machine code. This means that it will be possible to do a search on the Internet for, say, all photographs of the San Francisco skyline that are available for free reuse.

Creative Commons is not the only group developing such licenses. The Electronic Frontier Foundation has one in place specifically for audio copying. A group at the Massachusetts Institute of Technology has been experimenting with its own version. Creative Commons, however, is probably the biggest effort, having raised $2 million in grants from the Center for the Public Domain and the John D. and Catherine T. MacArthur Foundation. 

So far, roughly one million works have been placed under a Creative Commons license, though the exact number is not known. The group does not charge a fee to those who download a license, nor does it keep a database of the visitors who have done so. Lessig explains that Creative Commons wants it to be easy for the average person to get and use a license. “This has to be a lawyer-free zone,” he says. 

In fact, getting a Creative Commons license is quick and painless. Upon arriving at the site (www.creativecommons. org), one need only click on the “choose license” prompt, then answer a few yes-no questions: Do you want to require attribution? Do you want to allow commercial uses of your work? Do you want to allow modifications of your work? And if you permit modifications, do you want to require that the modified work will be shared under the same rules as this one? The visitor can then obtain a brief tag describing what conditions of reuse he is permitting, along with a link to a more detailed version of the license on the Creative Commons website. (There’s an alternative label for hardcopy works.) 

The concept is being put into practice by some notable artists and intellectuals. Roger McGuinn, a founder of the rock band The Byrds, has used a Creative Commons license to permit noncommercial copying of several hundred folk songs that he has performed and placed on the Internet as MP3 files. Jerry Goldman, a political science professor at Northwestern University who founded the Oyez Project, which maintains an archive of recordings of Supreme Court hearings, in June placed several hundred hours of High Court arguments online, using a Creative Commons license to signal that they are available for copying. 

But equally important, the licenses are being embraced by artists and musicians who have yet to achieve notoriety. Colin Mutchler, a guitarist, wrote to Creative Commons in July that he had submitted a guitar track, titled “My Life,” to an online sound pool, Opsound, with a Creative Commons license that permitted it to be reused and transformed, as long as the work was attributed to him and it was for a noncommercial use. One month after the track had been posted, he received an e-mail from a 17-year-old violinist, Cora Beth, who had added a violin track to his guitar. She called the new version, “My Life Changed.” 

“I think the track is definitely more beautiful,” Mutchler wrote. “Maybe eventually we’ll add drums and words.”

Lessig predicts that by the end of the year more than 10 million works will be under Creative Commons licenses. That’s an insignificant number viewed in the context of the billions of works under traditional copyright, but Lessig says it will demonstrate mass support that will encourage Congress to change existing copyright law. He is championing a bill, the Public Domain Enhancement Act, that would require copyright holders to register their works after 50 years if they want them to be protected for the remaining years of the term. All works that are not registered would enter the public domain. 

The idea that a grassroots movement is building over copyright may sound odd. As many law school graduates will attest, copyright isn’t exactly the most glamorous subject in the curriculum. In writings and lectures, however, Lessig presents the issue as one that cuts to the heart of sustaining free expression and a free culture in the 21st century. While many copyright lawyers complain that the problem is pirates stealing music and movies on the Internet, Lessig points to fundamental changes in law, technology, and the economy that have led to what he calls an unprecedented concentration of ownership and control of intellectual property. 

“Never in our history has there been a fewer number of actors exercising more control over our culture,” Lessig said in his July 2 lecture at the Internet Law conference at the Law School. “This is a fundamentally different creative context than ever before: our free society has become a permission society, our free culture has become an owned culture.” 

Lessig notes that not only have copyright terms grown longer over the past three centuries (from 14 years to 95 years or the author’s life plus 75) but so has the scope. Copyright law now prohibits any “copying,” not just commercial republishing. More important, works are automatically covered by copyright at their creation instead of the original system that required creators to register their works to be covered. 

Lessig adds that increasing concentration of media ownership-and copyright ownership-leads to even less likelihood of works being shared for free. And this is vastly magnified by the rise of tile Internet. Although the Net at first led to widespread disregard of copyright, it now is helping establish even greater control, Lessig says. As society relies more on intellectual property in digital form, intellectual property is increasingly being distributed with embedded codes that make reuse difficult, if not impossible-even when such uses are lawful. 

“We’re moving from one extreme to another,” Lessig declares. “This has become a debate framed by extremists the people who say copyright controls all rights and me people who say there shouldn’t be any at all.” But mere is also a third, middle group. He explains, “There are people who don’t believe in all rights or none, but believe in some.”

The sampling license mat executive director Brown has been crafting is one of several new licenses that Creative Commons is developing that offer new ways to preserve some rights. The need for a sampling license has grown more apparent in recent years, though decades ago there was little need for it. As Lessig frequently mentions, Walt Disney borrowed from the Brothers Grimm and other artists to create many of his greatest films. 

Still, a recent situation involving Bob Dylan demonstrates how sampling is now being mistaken for theft. Dylan is widely known to borrow lines from omer writers in composing his own works. But in July the Wall Street Journal ran a front-page story suggesting that his song “Floater (Too Much to Ask)” plagiarized a little-known Japanese novel, Confessions of a Yakuza. In response to the ensuing controversy, Ne7v York Times music critic Jon Pareles wrote that interspersing lines from another text into a larger composition is typical of what Dylan has often done: “Writing songs that are information collages.” Pareles adds that such a practice was once seldom challenged, but that the widespread availability of music on the Internet had led many copyright holders to react by reaching even further in asserting their rights and restricting sampling. 

The challenge for Creative Commons is to come up with a license that accurately stakes out mis allegedly imperiled territory. And developing the language so that it can satisfy both lawyers and artists is no easy task. On May 23, Brown launched a discussion about it with a dozen or so people who signed up and shared their comments with each other via email. The review was supposed to have ended four weeks later, but as of mid-July remarks were still flying back and forth. 

Don Joyce, a member of an experimental music and art collective called Negativland that composes in “found sound,” moderated the conversation. Anlong the other participants were a singer who says she edited Timothy Leary’s last novel a consultant from a multimedia design studio, an anthropology professor, and Kirkman, the Wilson Sonsini partner who helped draft the license and is a self-described “copyright geek.” 

One artist raised an objection that a phrase in the license-“highly transformative”-was too vague in describing what a derivative work is. Kjr!cman answered, “We would go down a legal rat hole trying to define these terms.” And she added, “At some point you end up relying on a reasonable interpretation of the words that you use.” Another participant questioned whether the creator of the derivative work should be required to include an attribution to the artist whose work was borrowed. And then many in the group expressed confusion over what happens in a situation in which a derivative work is placed under the license and then a new derivative work is made. Was the creator of the new work under obligation to identify and get permission from the contributors to the previous work if the previous artist had not done so? 

The license and these questions are of more than abstract interest to Joyce. His collective, Negativland, was sued in 1991 by Island Records for sampling a song from the label’s band, U2. Negativland’s recording was pulled from circulation to put an end to the legal wrangling. So for Joyce the discussion goes to the heart of how free expression can be encouraged today. “How much practical use [the new license] will be, we shall see,” he says. At the very least, he adds, “It’s bridging the concept gap.” 

Kirkman agrees that this and the other Creative Commons licenses are pushing the envelope. She spends most of her work time developing copyrights for new technology products that will protect private interests. “Those are fine and noble interests,” she says. “But I wanted to be involved in this discussion because it’s on the cutting edge: we’re exploring how to use the copyright framework for the public interest.” 

The new license is expected to be approved by the Creative Commons board by the end of the summer. It may wind up being only of interest to avant-garde artists and copyright lawyers. It could end up little more than a footnote in a future scholarly treatise on the history of copyright. Then again, maybe Bob Dylan or some other superstar will learn about it and place the double C symbol on his works. And if one such artist takes a stand, then perhaps thousands more will follow. 

Besides, there’s nothing lost by thinking creatively.