Friday, October 23, 2009

A Counter-Argument to Lessig and the 'Commons' Model...

In the debate over copyright reform, Lawrence Lessig has been at the forefront of the movement. It is he who has argued that the open internet is being closed off into protected private spaces, and he's become something of a folk hero in the Digital Age for his stance on preserving the public domain. But while netizens remain consumed in their hero worship, some, even within the movement, who are almost universally overlooked, have put forth a counterargument. And it deserves a little bit of attention.

To set the context, Lessig and his followers believe that, when it comes to downloading copyrighted content like music or movies, the issue is far more complex than simply labeling it as between the copyright owners (the good guys) and internet pirates (the bad guys), as the corporate labels and studios would have us believe. History is ripe with a tradition of a public domain, and a balance, still, must be struck between it and the interests of content creators.

From Open Code and Open Societies:

The streets, or sidewalks, or parks; Romeo and Juliet after the copyright passes; all of these things exist in a place modern political culture has forgotten. All of these things exist in the commons - in a public domain, rom which anyone can draw. Anyone can draw from the commons - and here is the crucial idea - without the permission of anyone else. These resources exist in a place where anyone in society is free to draw upon them, where anyone can take and use without the permission of anyone else.

Now of course, strictly speaking, stuff in the commons is not necessarily free. The streets can be closed; or you might be required to get a permit to hold a protest before city hall. The parks might ban people in the evening. Public beaches get full.

But the critical feature of a resource in the commons is not that the resource is free, as Richard Stallman describes it, in the sense of free beer. There may well be restrictions on access to a resource in the commons. But whatever restrictions there are, these restrictions are, as we lawyers say, content-neutral. A park might be closed in the evening, but it is not closed to liberals and open to conservatives. The restrictions that are imposed on a resource in the commons are restrictions that are neutral and general.

The crucial element is that Lessig has attempted to strike a better balance between the ideas of "copyright" and "copyleft" through new legal licensing schemes. He pro-actively established the Creative Commons - a nonprofit organization that seeks to facilitate online sharing and collaboration by creating new types of licenses as an alternative to traditional copyright mechanisms. This blog, for example, uses a Creative Commons license which can be found on the sidebar.

But are new licenses really a resolution to all of the copyright chaos the internet has wrought? Not everyone thinks so.

In an article titled "A Letter to the Commons", Heather Ford challenges this model:

We find the paradox of a space that is called a commons and yet so fenced in, and in so many ways, somewhat intriguing. The number of times we had to ask for permission, and the number of security check posts we had to negotiate to enter even a corner of your commons was impressive...

We were amazed by the ingenuity (and diligence) you display in upholding the norm that mandates that unless something had been named explicitly as part of the 'commons' by its rightful owner, it is somehow out of bounds to everyone else...

You see, we undertook our education in the public library of the street, in the archive of the sidewalk. Here, our culture, came to us in the form of faded and distressed copies, not all wrapped and ribboned with licenses. We took what we could, when we could, where we could...

If we had to listen to your stipulation to share only that which we own, hardly anything would have been passed around...

You call this piracy. Perhaps it is piracy. But we have to think of consequences... When you do not have a public library, you have to invent one on the street, with all the books you can muster, with everything you can beg, or borrow. Or steal...

A world without our secret public libraries would be a poorer world. It would be a world in which very few people read very few books... It would also mean a world in which, eventually, very few people write books. So instead of more, there would be in the end less culture to go around.

This letter is signed, "Denizens of Non Legal Commons".

What fantastic stuff! The letter is written in the same provocative style as classics like the Declaration of the Independence of Cyberspace. It also makes some sense - particularly in its critique of commons licensing which, I have to admit, does often create more barriers to content-sharing than it removes, and also somewhat helps legitimize the existing copyright system.

What we are witnessing is the copyright reform movement's maturation. It's next phase. Almost since its inception, reform advocates have had to cling to Lessig's commons model because, although people believed in it to varying extents, the truth is that there really wasn't any alternative framework out there to choose from. If you believed the copyright system was obsolete, your only constructive legal argument to rely upon, without sounding like a lunatic, was the commons and commons licensing. However, if the reform movement can begin formulating new critiques and new alternative frameworks for understanding the issue, perhaps the movement itself will become what its advocates so fiercely espouse... a marketplace of ideas.


At 9:04 PM, Anonymous BearDutch said...

Great blog! I still wonder if everyone fighting against copyrights or for copyright reform is just trying to justify the hundreds of thousands of dollars they have stole from the creators' pockets. Whatever gets you to sleep at night; I guess.

At 9:36 AM, Blogger Robert J. Domanski said...

Trust me on this, there are plenty of people out there who truly want to see copyright reform, not because they are pirating music or movies, but because they see the system as genuinely broken. They argue that creativity ultimately suffers when the public domain is weakened, and that is what's happening now under the current legal regime.

Lessig is the leader on this front, but others include Jonathan Zittrain and Yochai Benkler (all of these guys have terrific books on the subject).


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