The Free Culture Movement (FCM) turned 1 last April. Started by students at Swarthmore College, the group has established 10 chapters at universities around the country. They’re working to raise awareness about the harm to creativity and spread of knowledge caused by the ever-increasing duration and scope of copyright protection. While the group took its name from the title of my book (pirates!), the movement has nothing to do with me. But I am, of course, a supporter. And as FCM’s birthday approached, I wanted to celebrate in a way that taught the lessons of the movement.
I convinced my staff at Creative Commons that we should ask some of the leaders of the free world—people at the Electronic Frontier Foundation, folks at Public Knowledge, Mitch Kapor, Richard Stallman, Brian Behlendorf, and others—to make a recording of “Happy Birthday to You” as a gift to FCM. Our plan: Post the recording on the Web and ask for contributions to the FCM.
Of course, as Creative Commons is built upon respecting creative rights, we wanted to do this by the book. And you wouldn’t think that would be too hard.
But that’s probably because you’re not a lawyer. For “Happy Birthday to You” is under copyright until 2030. No joke. That means we needed permission to make available a recording of the song—as you would, too, if you posted a video of your kid’s first birthday on the Web. At first, we thought we could secure that permission by getting a mechanical license—a right established by the Copyright Act of 1909 to make it easier for music labels to produce records. It’s a routine process controlled by the Harry Fox Agency, a rights clearinghouse. The license would cost us 8.5 cents a download, which was fine.
If that’s the price, that’s the price.
But then a lawyer at Creative Commons worried that we would need a public performance license as well, something required by the World Intellectual Property Organization and recommended by the American Society of Composers, Authors, and Publishers (ASCAP).
So we contacted Warner/Chappell Music, the company that manages the copyright to “Happy Birthday to You.” The Same Old Song
For $800 per year, they said we could make our recording available on the Web. We agreed and waited patiently for the license. But two weeks later, Warner changed its mind and refused us a performance license—without any explanation. All we could do was get a mechanical license and hope that ASCAP wouldn’t notice.
Then things got really nuts. I wanted to offer the recording under a Creative Commons license so that podcasters and Web radio stations could stream the song without having to pay us. My staff revolted. If people thought they had the right to remix our recording, they fretted, we would be encouraging copyright infringement. Only if we sternly warned our fellow commoners that they weren’t free to remix “Happy Birthday to You” would my staff let me use a Creative Commons license. So we prepared a mean-looking Web page, warning people of the rights they don’t have to a song, while we waited for the mechanical license. FCM’s birthday had come and gone, but the lawyers were still at work.
The world is obsessed with the Grokster case and the rights concerning Internet file-sharing. But it’s time we recognize that other copyright questions will prove more important to how creativity on the Net develops. In a world where podcasts and GarageBand have enlarged the opportunities for people to create and share their work, should we really have rules that require a lawyer to sit by a person’s side? Should a system built for record companies at the turn of the 20th century remain unchanged when technology means that anyone can become a record company? How can a creator using digital tools easily obey the law?
I’m pretty sure I know what the lawyers think. But laws should reflect views of the reasonable, not the lawyerly. And if Congress really wants the Net to conform to its laws, it needs to pass legislation that makes sense of the Net. The existing system is just workfare for lawyers. It begs to be disobeyed, and disobeyed it is. Digital creativity is theft, because the rules governing such creativity are insane. Who but the staff at Creative Commons would go through all this trouble just to record “Happy Birthday to You” for friends?
BY LAWRENCE LESSIG C. Wendell and Edith M. Carlsmith Professor of Law T