A discussion of hybrid open source and proprietary licensing models.

[Lawrence Lessig <lessig AT pobox.com>]

So today, Creative Commons launches its first fund raising campaign.  
Until now, we've lived on very generous grants from some very wise  
foundations. But the IRS doesn't allow nonprofits to live such  
favored lives for long. To maintain our nonprofit status, the IRS  
says we must meet a "public support test" -- which means we must  
demonstrate that our support comes from more than a few foundations.  
And thus, this campaign.

This email is a pitch, asking for your support. But it is also the  
first in a series of emails I will write explaining what Creative  
Commons is, and where we're going with it. This is something I should  
have done long ago. There have been many thoughtful (even if some not  
so thoughtful) questions raised about who we are, and where we're  
going. I've wanted an excuse to answer them thoughtfully before. The  
IRS has given me that excuse.

You're on this list because you've signed up to receive information  
about Creative Commons or been a friend to CC in the past. If these  
weekly emails from me (from now until Christmas, around 500 words in  
length, except for this one which is a bit long) will be a bother,  
please unsubscribe at
http://creativecommons.org/about/newsletter#unsubscribe.
Alternatively, if you know others who might find these interesting,  
please recommend they sign up at
http://creativecommons.org/about/newsletter.

This first email won't have much news to current friends of Creative  
Commons. You probably know all this. My aim in this initial missive  
is to explain what Creative Commons is, and why we launched it. There  
will be some bragging about what we've accomplished so far. Don't  
worry, these emails are from me, and not a press department. There  
will be plenty of self-criticism later on. For the moment, let's  
focus on the positive idea that got CC going.

CC: The Story

Creative Commons was conceived in a conversation I had with Eric  
Eldred. I was representing Eric in his case challenging the United  
States Congress' Copyright Term Extension Act. Eric was enthusiastic  
about the case, but not optimistic about the results. Early on, he  
asked me whether there was a way that we could translate the energy  
that was building around his case into something positive. Not an  
attack on copyright, but a way of using copyright to support, in  
effect, the public domain.

I readily agreed, not so much because I had a plan, but because,  
naive lawyer that I was, I thought we'd win the case, and Eric would  
forget the dream. But nonetheless, long before the Supreme Court  
decided to hear Eldred's plea, a bunch of us had put together the  
plan to build the Creative Commons.

We stole the basic idea from the Free Software Foundation -- give  
away free copyright licenses. Because copyright is property, the law  
requires that you get permission before you "use" a copyrighted work,  
unless that use is a "fair use." The particular kind of "use" that  
requires permission is any use within the reach of the exclusive  
rights that copyright grants. In the physical world, these "exclusive  
rights" leave lots unregulated by copyright. For example, in the real  
world, if you read a book, that's not a "fair use" of the book. It is  
an unregulated use of the book, as reading does not produce a copy  
(except in the brain, but don't tell the lawyers).

But in cyberspace, there's no way to "use" a work without  
simultaneously making a "copy." In principle, and again, subject to  
fair use, any use of a work in cyberspace could be said to require  
permission first. And it is that feature (or bug, depending upon your  
perspective) that was the hook we used to get Creative Commons going.

The idea (again, stolen from the FSF) was to produce copyright  
licenses that artists, authors, educators, and researchers could use  
to announce to the world the freedoms that they want their creative  
work to carry. If the default rule of copyright is "all rights  
reserved," the express meaning of a Creative Commons license is that  
only "some rights [are] reserved." For example, copyright law gives  
the copyright holder the exclusive right to make "copies" of his or  
her work. A Creative Commons license could, in effect, announce that  
this exclusive right was given to the public.

Which freedoms the licenses offer is determined both by us (deciding  
which freedoms are important to secure through CC licenses) and by  
the creator who selects from the options we make available on our  
website. The basic components have historically been four: (1)  
Attribution (meaning the creator requires attribution as a condition  
of using his or her creative work), (2) NonCommercial (meaning the  
creator allows only  noncommercial uses of his or her work), (3) No  
Derivatives (meaning the creator asks that the work be used as is,  
and not as the basis for something else), and (4) Share Alike  
(meaning any derivative you make using the licensed work must also be  
released under a Share Alike license).

These four options -- when each is an option -- produce 11 possible  
licenses. But when we saw that 98% of our adopters chose the  
"attribution" requirement, we decided to drop attribution as an  
option. That means we now offer 6 core licenses:

(1) Attribution (use the work however you like, but give me attribution)
(2) Attribution-ShareAlike (use the work however you like, but give  
me attribution, and license any derivative under a Share Alike license)
(3) Attribution-NoDerivatives (use the work as is, and give me  
attribution)
(4) Attribution-NonCommercial (use the work for noncommercial  
purposes, and give me attribution)
(5) Attribution-NonCommercial-NoDerivatives (use the work for  
noncommercial purposes, as is, and with attribution)
(6) Attribution-NonCommercial-ShareAlike (use the work for  
noncommercial purposes, give me attribution, and license any  
derivative under a ShareAlike license)

(We also offer a couple of other specialty licenses that I'll  
describe in a later post).

These options get added to a basic template license. That template  
assures that the creator (1) retains his or her copyright, (2)  
affirms that any fair use, first sale, or free expression rights are  
not affected by the CC license, and (3) so long as the adopter  
respects the conditions the creator has imposed, the license gives  
anyone in the world four freedoms: (i) to copy the work, (ii) to  
distribute the work, (iii) to display or publicly perform the work,  
and (iv) to make a digital public performance of the work (i.e.,  
webcasting). Finally, the license also requires the adopter to (1)  
get permission for any uses outside of those granted, (2) keep any  
copyright notices intact, (3) link to the license, (4) not alter the  
license terms, and (5) not use technology (i.e., DRM) to restrict a  
licensee's rights under the license.

The licenses give creators a simple way to mark their creativity with  
the freedoms they want it to carry by default. The license is an  
invitation to others to ask for permission for uses beyond those  
given by default. A "Noncommercial" license does not mean the creator  
would never take money for his or her creativity. It means simply,  
"Ask if you want to make a commercial use. No need to ask if you want  
to make just a noncommercial use."

We launched Creative Commons in December, 2002. Within a year, we  
counted over 1,000,000 link-backs to our licenses. At a year and a  
half, that number was over 1,800,000. At two, the number was just  
about 5,000,000. At two and a half years (last June), the number was  
just over 12,000,000. And today -- three months later -- Yahoo!  
reports over 50,000,000 link-backs to our licenses. "Link-backs" are  
not really a count of how many objects are licensed under Creative  
Commons licenses - a single license could cover 100,000 songs in a  
music database for example, or a single blog might have multiple  
instances of the license. But the growth does measure something: The  
uptake of Creative Commons licenses is growing fast, and indeed, far  
faster than I ever dreamed.

Next week: What problems did we aim to solve and what examples from  
the past did we learn from.

To link to or comment on this message, go to:
http://creativecommons.org/weblog/entry/5661

To support Creative Commons, go to:
http://creativecommons.org/support

For more on the licenses, see
http://creativecommons.org/about/licenses/fullrights

For comics and movies: http://creativecommons.org/about/licenses/how1,
http://mirrors.creativecommons.org/