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THE FREE CULTURE COMMONS AND FUTURE GENERATIONS

By
Nathan Otto

A Thesis
Presented to the Department of Political Science and the Clark Honors College
of the University of Oregon in partial fulfillment of the requirements
for the degree of Bachelor of Arts
November 2008
ii

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An Abstract of the Thesis of


Nathan Andrew Otto for the degree of Bachelor of Arts
In the Department of Political Science to be taken November 18, 2008
Title: THE FREE CULTURE COMMONS AND FUTURE GENERATIONS

Approved: ______________________________
Professor John Davidson

ABSTRACT:

This paper presents an argument to artists and other content creators about the control

they assume over their “intellectual property.” Through recognition of the flawed

metaphors behind the concept of intellectual property and the adoption of new metaphors,

a responsibility to protect the freedom of speech of future generations is revealed. It

requires that those who create content and protect it under the Copyright powers granted

to Congress in the Constitution of the United States adopt the minimal protection

required to incentivize the creation of this content. An alternative metaphor that “ideas

are children” reveals a set of possibilities and responsibilities over ideas that are closer to

the natural characteristics of ideas, recognizing that ideas (and their expressions in digital

content) have the special ability to be shared with no loss of quality. Artists who adopt an

alternative perspective toward their ideas will recognize the value of freedom of speech

for future generations.


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ACKNOWLEDGEMENTS

The author wishes to thank Professors John Davidson, Doug Blandy, Joseph Fracchia,

and Richard Kraus for their valuable perspectives in engaging with this work. I hope to

continue to tap their deep knowledge and experience as I explore other facets of man’s

relationship with ideas in my future work. I also thank Mr. N Ray Hawk and Mrs Phyllis

Hawk for their financial support of my college education through their generous

sponsorship of my University of Oregon Presidential scholarship. I would also like to

thank Margaret Wright, whose patience and understanding made the eventual success of

this project possible.


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TABLE OF CONTENTS

1. Chapter 1: A Fundamental Problem


1.1. Eighty-Three Acts of Infringement
1.2. Language – A Commons of Content
1.2.1.Literacy
1.3. Innovation on the Commons

2. Chapter 2: Metaphor
2.1. Introduction
2.2. Lakoff and Johnson’s Technique
2.3. “Ideas are Property”
2.4. “Ideas are Manufactured Physical Objects”
2.5. “Ideas are Natural Resources”
2.6. Complications of “Ideas are Property”
2.7. Criticism of the Intellectual Property Metaphor
2.8. Returning to an Intuitive Understanding of Ideas
2.9. The Maintenance of Property and Ideas
2.10. “My Idea” – The connection between artist and work

3. Chapter 3: Future Commons


3.1. Eldred v. Ashcroft (2003)
3.2. How the Intellectual Commons is Made
3.3. Source of Responsibility to Establish a Just Regime of Idea Control
3.4. Universalistic versus Relational models
3.5. Obliagations
3.6. Universalistic Models
3.6.1.Argument from Utilitarianism
3.6.2.Individual Rights-based Approach
3.7. Resource Analysis For Future Generations
3.7.1.Natural Resources
3.7.2.Resource Analysis in Evaluating Obligations
3.8. The Free Speech Climate in Future Generations

4. Chapter 4: New Models and Individual Change


4.1. The Value of Free Culture for Individuals
4.2. Access
4.3. Genre
4.4. Liberal Licensing
4.4.1.Licensing options
4.4.2.A critical mass of content
4.4.3.Becoming competitive
4.4.4.Language and literacy
4.5. Open Source Software
4.6. Open Source Currency
4.7. What norms should regulate culture
4.7.1.The Rip-off norm
4.8. Tenure: Reputation norms in practice
4.9. Reputation as Value
4.10. New model: “Selfness”
4.11. Free-speech balance at the individual level
4.12.Personal Responsibility and Progress
Chapter 1: A Fundamental Problem
Culture and law are in the process of adaptation to the bonanza of content made

possible by the Internet. As a hub of communication, it is the ultimate water cooler,

connecting people across any earthly distance in millions of new contexts. The exchange

of gossip or jokes happens differently in this space because people have adapted to it

socially, extending and translating their communication skills into new media. Control

over audio, video, and interactive web content is available to a new population of

amateurs. Some of the content produced in this new space has value, even if only

sentimental rather than commercial. The law has also attempted to follow the valuable

content, extending its language and capabilities to encompass the possibilities of the

Internet. Like culture, the law has moved into the new territory, interpreting the shape of

what exists there with the same tools it uses to parse the “real world”. Now, when we

describe the online world of light-speed digital content, we can choose to do so from

either the perspective of culture or from the perspective of law, and the consequences of

this choice have grown great. Since the infancy of the Internet, a strengthening concept of

intellectual property has granted copyright and patent holders strong tools of control over

the content they have created. A great quantity of content exists under such protection. At

the same time, Internet technology has opened to individuals channels of access to

powerful tools for manipulating and broadcasting great quantities of content, allowing

cultural exchange and communication like never before. The tools of new culture have

come into conflict with the tools of the law. Because nearly every action on a computer

constitutes making a copy. This is a dynamic the 1909 legislators, who extended
copyright to cover making copies, did not expect.1 The common daily activities involved

with viewing and manipulating content could be declared illegal under current precedents

in intellectual property law.

1.1 Eighty-Three Infringing Acts: The average day


A law professor, John Tehranian, has written up a simple thought experiment to

illustrate the extent to which intellectual property law claims authority over the everyday

experience of a network-connected American and discuss the potential costs to average

Americans if the law was fully enforced against every violation.2 Tehranian's hypothetical

American is a professor. He performs a full day's worth of common activities. The acts

are as follows:

• answering twenty emails by quoting the original message in his replies,

• distributing copies of just-published news articles and reading a poem to


students in class,

• drawing a doodle fundamentally similar to an existing architectural work,

• forwarding pictures his friend had taken,

• displaying his tattoo of a copyrighted cartoon character,

• recording a video of his friends singing a well-known song on a camera


phone,

1
Lessig, Lawrence. Remix. New York: Penguin Books, 2008. 100-101.
2
Tehranian has thoroughly documented this example with case references, showing that a number of
common daily activities can be readily interpreted to infringe on intellectual property rights in a number of
ways. He includes a calculation of the present intellectual property regime's consequences under conditions
of full enforcement of every act of copyright infringement. Tehranian, John. "Infringement Nation:
Copyright Reform and the Law/Norm Gap." Utah Law Review, 2007. 543-47
<http://ssrn.com/abstracts=1029151>
• and buying a magazine that contains "found art"3

These all could be construed to infringe on others' intellectual property rights. The

hypothetical professor could be liable for up to $12.45 million if the maximum statutory

damages of $150,000 per instance were awarded for the 83 acts of intellectual property

infringement Tehranian figures this adds up to.

The activities he did all produced value, or extended value to more people. The

value produced is hard to measure because there is no economic value to each of these

acts, but they do have significance. Their value, sentimental or otherwise, is relative to a

judge.4 If you were forced to express the value of the professor's infringement in dollars,

it would not approach the millions. In the case of the college students in his classes, the

news articles and poem, paired with the professor's informed commentary may have

provided enough economic value to justify tuition and fees for the day. An amateur

recording of a song, recorded on a camera phone, probably only had sentimental value.

What could be said of the value of the doodle of some of the professor's favorite

architecture? The content may have some value to him, but the doodle likely has not

enough to make it worth keeping the napkin he writes it on. In the case of the magazine,

the value may have justified the cover price, or even a subscription, but the value created

3
Found art is potentially copyrighted material whose authorship is unknowable. Pieces of found art are
discovered on the streets, or in nature, but are typically human-made, although abandoned. Part of the
appeal of found art is in the mystery over its source and the glimpse into their life provided by looking at a
discarded note or ticket stub. A magazine that would republish material does so necessarily without
permission of the original authors, and thus may be liable for infringement if those authors came forward to
complain. Tehranian argues that a subscriber to such a magazine may be liable for contributing to violations
it commits. Tehranian,"Infringement Nation," 545.
4
Standard definitions of value capture a collection of uses that are all relative to a judge who determines the
amount. This judge could be the individual, assessing an item's worth on whichever scales matters to him or
her, or it could be an estimation of market value from a number of sources. In the market, value is
negotiated down into a single variable, money. See, “value, n.” The Oxford English Dictionary. 2nd ed.
1989. OED Online. Oxford University Press. 4 Apr. 2000.
by allowing one more person to think about some quirky found art doesn't approach the

$7.5 million in "secondary liability" that the professor may be open to by the act of

supporting the publication and sale of many pieces of unauthorized content5.

None of the activities stole real income from the holder of the copyright. The

video of his friend singing a copyrighted song has little to do with whether the pair

would have chosen to sing it if the copyright owner had been right there with a ready

made license to sign for a low fee on the spot. The last item on the list describes the

secondary liability of subscribers to a magazine that prints copies of found notes and

personal items. The publishers in this example created a marketable product out of

discarded items whose owners could never be located in advance of publishing. The

mystery of the author's identity is part of the appeal to such art. Because the authors are

unknowable, the intellectual property rights needed to republish them cannot be cleared.

The original owners of each item could not have sold them for a profit. Under a situation

of full enforcement, a use like this is still technically infringing. Honoring the copyright

in each case would have presented obstacles so expensive or time-consuming that the

cost itself would quickly eclipse the value of referencing that particular work, right then.

Nevertheless, it is an important part of human expression that we can experience culture

and content with everyday actions like these described. All of the activities the

hypothetical law professor did could be generalized to examples of interaction with

information and other people, so that this daily routine looks familiar to any network-

connected person. The gap between the fact that millions of people infringe intellectual

5
One may be subject to secondary liability for intellectual property infringement if he assists in that
process. Companies that provide Internet connections or host user-posted content are careful to avoid a
stance that could be construed as supporting infringement. See Tehranian, "Infringement Nation" 547-548.
property on this scale every day and the letter of the law, with its $150,000 maximum

statutory damages for each case of infringement, is a chasm. The uncertainty over the

legality of actions that fall in this gap may serve to limit some of these unlikely-to-be-

prosecuted, low-value cases of technical infringement.

Why are so many of our daily activities possible acts of infringement of

somebody else’s copyright? Most network-connected people are likely to infringe

intellectual property on this scale in the course of any ordinary day. Americans have

increased their potential to come in contact with information in general, including

copyrighted content. The opportunities to interact with content have greatly expanded, so

individuals today are confronted with possibilities for manipulating and rebroadcasting

content that did not exist before the Internet. A broad spectrum of individuals have the

potential to manipulate existing content and include it in new projects that have value for

themselves and their friends. Or maybe these manipulations and adaptations are worth a

laugh from a hundred anonymous people who just happened to be up late at night

browsing the Internet. These projects may have enough value to justify making them for

free, but usually not enough to justify the complex and expensive process of clearing

copyrights to include existing content in their works. These creations are more valuable

because of the inclusion of existing content, although in the great majority of cases, they

are still not valuable enough to be commercially viable at any scale. Pieces of culture

have value, and there is often value in communication that uses copyrighted content.

Lawrence Lessig, lawyer, professor and founder of Creative Commons asks what has led

us to the point where an individual who aspires to make movies with the inexpensive

cameras now available has only the freedom to “make a movie in an empty room, with
[his] two friends” because it is impractical to clear the copyrights to making

representations of every piece of furniture or wall art in a room.6 Lessig’s book The

Future of Ideas, goes to great length explaining the importance of access to a commons

of content.7 He shows how intellectual property protection limits the extent of the

commons, preventing access to many of the most important ideas in our culture, closing

opportunities to exploit ideas, techniques, tools and designs in new contexts. Intellectual

Property (IP) protection has taken a robust, expansive, and long-lasting form as of 2008.

The laws that make this dynamic possible in the United States are justified under the

Copyright Clause in the Constitution in order to promote progress “in the useful arts and

sciences.” But due to the current limitations on how people can use content created by

others, what is happening today does not smell like progress.

I want to recognize the value of the millions daily exchanges of little bits of

culture between individuals and groups. A large amount of this communication rehashes

previous content, assembling pieces from multiple sources to form an expression

appropriate for the message and occasion.

In this paper, I argue for an intellectual property regime (or lack of one) whose

central feature is the creation of a vibrant commons of intellectual content that is freely

available to the public. I think such a commons embodies the Progress requirement

enshrined in the Constitution by seeking broad access to a wide a range of ideas, designs,

stories, video footage, and more. Content in such a commons should be free to read8 as

well as to modify and appropriate to individual projects. Lessig borrows a term from

6
Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001. 5.
7
Lessig, The Future of Ideas.
music production to describe this activity as remix.9 Before I examine the underpinnings

of intellectual property protection, outline our responsibilities and offer policy options for

creating such a commons, I would like to give an example of such a commons that exists,

upon which norms of free access reign, in order to demonstrate the fruitful bounty of

content that such an ecosystem generates.

1.2 Language: A Commons of Content:


A language forms and is formed by a community structure.10 This structure

determines access to the resources of the network. Those who can communicate in

French have access to books written in French as well as the ability to transmit meaning

to other users of the language. The question of where the meaning resides within a

language is open, with some saying that meaning is tied to the words themselves and

others saying meaning is constructed in the minds of those who read those words.

Regardless of whether or not we assume that the words that make up a language

inherently have meaning, the use of language to communicate is a process by which

meaning is conveyed.

We could assume that the words themselves carry the meaning, that they map

onto literal concepts in the real world. Under this model, communication is a transfer of

meaning from one person's head to another's. Alternatively, we could take the other

extreme and assume that meaning may exist in an individual's mind but is not present in

the language, which is simply a tool to activate similar learned meaning in another

individual's head. In this view, meaning is unique to each individual, but still can be

spread through the use of language.

Under either assumption, communication signifies an information increase in the

communication system of a particular language network. Value is introduced primarily in

the transfer of content from one person to another and secondarily as ideas from multiple

sources combine in the synthesis of new concepts. In language, we can see evidence of

new concepts when a poet turns a new phrase or a bar friend comes up with a new pun.

It may be useful to consider how a computer treats communicated material,

because a large and ever-growing amount of content flows between connected computers.
A computer language is made up of different patterns of ones and zeroes, where specific

patterns have certain meanings assigned to them by the designers of the language.

“0100100001101001” has no meaning embedded in it directly, but such a sequence may

be interpreted by a computer that is programmed to analyze streams of binary in

predetermined ways. The interpretation mechanisms of each computer may be different,

depending on the physical architecture of each device. Computers programmed to decode

binary with the same library of meanings can interpret the ones and zeroes issued in that

"language" to access, and subsequently manipulate, embedded meaning. Communication

may occur between computers that are programmed to decode binary with the same set of

rules because these machines will be able to interpret the code predictably. A computer's

value arises from its ability to process, manipulate, and combine meanings as well as its

ability to transmit these to other computers and in turn make them useful for their human

users. The string of binary code is a piece of content that may be exchanged. It contains

patterns that are assigned to specific meanings. If a computer receives code that it cannot

parse with its library of predefined meanings, the computer is illiterate relative to that

word. For computers to reliably communicate with one another, they must "know" the

meanings of all the binary patterns in the language of this communication. More strictly

than a human, who can often learn words through context, computers that have an

incomplete library of translations are rendered unable to communicate or manipulate

meaning in the language at hand.

Imagine if there were restrictions on the use of particular "phrases" of this binary

language, so that a computer's owner had to pay a fee in order for his or her computer to

include some of these meanings in its translation library. Owners who could not afford
the fee or chose not to pay it would be unable to use their computers to communicate

with all other computers that "speak" the same language. The computers that could not

translate the restricted binary strings would be less valuable than those with complete

functionality. The important point is that even those computers whose owners paid the fee

are less valuable tools of communication than they would be if all the computers

connected to a network could understand everything said to them. A restriction that

prevents some members of a population from effective communication limits the value

that can be created and shared among the entire population.

This characteristic is true of person-to-person communications as well. Among a

population that shares a language, communication is most effective when there is a high

literacy rate. Only the literate can take part in a full range of intellectual interaction.

There is some sort of quantitative advantage to a high literacy rate in that the larger the

population of literate language-users, the higher the chances are that content of value is

produced through discussions in that language. Furthermore, the larger the portion of the

population that can access value through language, the more that value may spread

around. Some have found the value of literacy so essential that they have even gone as far
as figuring literacy as a civil right.11 Through literacy, the intellectual resources of a

language community can be accessed and improved. Both of these processes involve an

increase in value, even if it may be hard to measure.

1.2.1 Literacy:

The concept of literacy has expanded to encompass more than reading, writing

and arithmetic. It is sometimes synonymous with general competency, but also has

expanded into specialized literacies, giving rise to terms such as "computer literacy" and
even more specialized language more recently.12 Morris and Tchudi proposed a definition

for literacy, attempting to resolidify its meaning, referring to three partially overlapping

categories as the foundation of literacy: basic literacy ("the ability to decode and

encode"), critical literacy (the ability to "analyze, interpret, and explain"), and dynamic

literacy. The last is an expansive category that includes most of the other two, but also is
associated with specialized languages, tools, or techniques and the ability to expand
competency from known spheres into new ones.13

This definition is useful to apply to any new sphere or in general, especially as

new tools and applications arise in quick succession on the Internet. The ability to learn

new languages and competencies may be the most important skill to become a content

creator on the Web. With the arrival of YouTube in 2005, the language and skills of video

production was opened up to a much larger portion of the population. By mid-2006,


YouTube hosted 6.1 million videos uploaded by half a million individuals.14 This

signifies a great expansion in video-editing literacy, allowing a larger and larger part of

the population to communicate with video, potentially to a wide audience. The content

that collectively garnered 100 million views a day has value, apparently enough to justify

so many views. It would be difficult to measure this value in currency, because no users

pay for the service, and it is unlikely that YouTube could be successful in its reach if it

included a mechanism that charged for access to content. Adapting to the online "viral"

video medium of YouTube requires literacy in all three of Morris and Tchudi's categories.

Video creators depend on their dynamic literacy to learn the skills of video editing and

apply basic and critical literacy skills to producing content in the new medium. We can

look at the rise of YouTube literacy backwards, assuming that before YouTube,

limitations on access to the tools needed to develop YouTube literacy prevented the

widespread existence of this type of content.

Comparing the two situations side-by-side, we can see the mass of new value

made possible by YouTube and the content gap between the two. This gap is caused by

the lack of an adequate medium over which to exchange videos in the limited (pre-2005)

scenario. This is a limitation on the system, but the lack of an appropriate medium for

exchange is only one type of limitation that may exist for a language. This paper will

discuss another type of limitation on content literacy in general, one caused by a legal

mechanism: the artificial limitation imposed by intellectual property regulation arising

from copyright and patent law. I argue that this type of content protection, despite its

intension to increase and enhance available content, is restricting the spread and quality

of available content by introducing barriers to literacy in many pieces of content which


form the lexicon of Twenty-first Century culture. New tools are available that carry the

potential to increase cultural literacy in new ways, as YouTube has done. Such an

expansion could produce value for a wide audience without barriers imposed by a

weakening public domain.

A new language is springing up using the tools of new media, but many of its

“words” are artificially off limits to the people with the dynamic literacy to learn how to

interact with them in new ways. This limits the creation of value, because when specific

pieces of content are denied to some, there is a breakdown in individuals' literacy. With

the fracturing of literacy, those who have access to particular pieces of content may not

have the ability to use them to realize the same potential that another individual may be

able to achieve with that content. To some degree this is a conflict between "haves" inside

the media and big-business establishment and "have-nots" outside, because large

corporations both have access to large libraries of proprietary content they own. They

also have easier access to content owned by others because of the ability to bankroll

licensing fees that their small-time competitors cannot afford. Not even the largest media

conglomerate has complete access to all the content humanity can dream up, and for

individual producers in comparison, the access to proprietary content may be heavily

restricted. Where this limits the generation of new content, we can consider this loss of

value a cost of the system.

This paper will return to the abstract discussion of value a number of times,

because the key purpose of any intellectual property regime is to increase the value of the

collection of ideas available to culture. I want to equate the value of the concepts and

ideas held by a community with the value of the words of a language. Under this
metaphor, the words of a language correspond to the pieces of content bouncing around

in culture. It is hard to measure the value of any one particular word or piece of content,

and it is imaginable that we might do without any one of a great majority of the words or

ideas out there, but the collective value of this content is unquestionable. Command of a

language allows an individual to interact with other people, to create new content of

value.

The ability of a language to enable a community to build complex concepts upon

it is dependent on that community's access to the language itself. Language is necessarily

a commons for the community of users, and in many cases, this community is open to

new members simply by learning that which is in the commons at no charge beyond time

and effort and whatever it takes to gain access to the knowledge. This final barrier is

reduced in the presence of increasing resources for learning languages. Knowledge of the

language of a group is a necessary key to be able to directly interact with members. In

examining the commons of intellectual content in parallel with the commons of language,

I rely on an argument that conditions of freedom may be conducive to the highest literacy

in language and culture, that these conditions have the potential to produce explosive

innovation when paired with the highly-connected landscape embodied by the Internet.

Such an opportunity is new to us. We have seen a glimpse of it in the rapid growth of

Internet technology and its potential for enhancing communication. This argument makes

a case for a vibrant commons, but I wish to move beyond this argument to the realm of

solutions. How can we create a healthy intellectual commons from the legal, social, and

technical framework that is already in place? This will be the central aim of my effort. I

focus on the individual level of action. While change is necessary from a legal
perspective to restore the balance between intellectual property owners and the public

that will eventually inherit their ideas, I believe there is room for immediate action on the

part of individual content creators. Change at both of these levels will be instrumental in

establishing a fair intellectual property regime that honors the value of widespread free

access to content for ourselves and our posterity, and this change easily begins at the
individual level. Language is a code layer for content that is mostly free 15; which means

that it allows the ciphering and deciphering of meaning for the individual without

artificial restrictions on what may be expressed.. Language must be essentially a

commons in order to function, and if the metaphor follows to cast the next generation's

communications technology as a language, freedom of intellectual content may also be

essential.

1.3 Innovation on the Commons


What does innovation mean, and how does it work? What we are after here is the

process by which new ideas are created. We desire progress on multiple frontiers: both

technological and social, but also at an individual level on the issues that matter to each

of us. Progress often is associated the arrival of something new to the daily experience of

life, the effect of innovation. Definitions of “innovate” all capture the introduction of

something new, but also encompass the context from which they arise, that the existing
technology or philosophy form the foundation for the new.16 Innovators add value to the

best ideas already in existence; they rely on the commons of existing content so that their

effort can be spent on the part of the work that is new. In terms of abstract ideas, there is a

pool of all the ideas in social consciousness, from which innovators draw content to

transform into new ideas. But this pool of content has become less and less a commons.

Widespread use of strong intellectual property law has placed limitations on their access

to this pool by the innovators and has locked down much of the most recent and advanced

content for decades, available only to innovators who have the time and resources to

negotiate settlements with IP rights owners. In this paper, I will explore how those who

produce new content relate to their ideas and allow or disallow access to other potential

innovators. Deciding how to spread and protect content is complicated. This process

should include careful consideration of regulations' consequences on how ideas are

shared, but I feel that the balance on this calculation has fallen off. For too long, an

assumption that “ideas are property” has made content creators disregard this calculation.

I aim to bring the counterweight back to this step in the innovation process by

introducing new ways for individuals to treat ideas that embrace the importance of the

commons for all future innovators while still serving to gather benefits associated with

the content to those responsible for its creation. The first step in this task is to examine

the consequences of how we view our ideas through the lens of intellectual property.
Chapter 2: Metaphors
2.1 Introduction to Metaphors
Lawrence Lessig argues that debate on the copyright issue suffers from a taken-

for-granted assumption "that control is good, and hence more control is better"17 and that

this is crippling the potential for explosive innovation like that which was a defining

feature of the Internet revolution.18 It is easy for this assumption to take hold because it

arises from a fundamental policy choice on how the law defines ideas. The legal

framework of patent and copyright law establishes an ownership right as the mechanism

8
If content is text, we experience it through reading. If it is video, we experience it through viewing, and
audio through hearing. Newer types of Internet content may not fit only one of these categories. In any
case, “reading” describes access that does not modify the original. When “reading” digital content, this
entails making a copy, at least from the file into the computer's active memory, but this type of access does
not constitute copying in the physical world. Reading a book does not invoke copyright law, for example.
9
Lessig, Lawrence. Remix. New York: Penguin, 2008. 3-19.

Language may be defined as "The system of spoken or written communication used by a particular
10

country, people, community, etc., typically consisting of words used within a regular grammatical and
syntactic structure.” “language, n.” Oxford English Dictionary.

See Lang, Peter. Literacy as a Civil Right: reclaiming social justice in literacy teaching and learning. Ed
11

Greene, Stuart. New York: Peter Lang Publishing, 2008.

Morris, Paul J II. and Tchudi, Stephen. The New Literacy: Moving Beyond the 3Rs. San Francisco: Jossey-
12

Bass. 1996. 12
13
Morris and Tchudi, 12-13

Gomes, Lee. "Will All of Us Get Our 15 Minutes On a YouTube Video?", The Wall Street Journal Online,
14

Dow Jones & Company, 2006-08-30. Retrieved on 2007-11-24.

See Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom
15

(Yale University Press 2006)


16
“Innovate, v. 3. intr.” The Oxford English Dictionary. To bring in or introduce novelties; to make
changes in something established; to introduce innovations. Sometimes const. on or upon (also with
indirect passive). An “innovation, n.” can captures both the “new” and “old” parts of the meaning “2. a. A
change made in the nature or fashion of anything; something newly introduced; a novel practice, method,
etc.”
17
Lessig, Lawrence. 2001. The Future of Ideas. New York: Vintage. 13.
18
Lessig, The Future of Ideas. 267.
of interaction between creators and their ideas. Ideas then interface with the market

through this legal interpretation. When ideas spread through the market as owned

property, people adapt assumptions about control that apply to physical goods in the

marketplace to cover ideas as well. This is now a debate about property, and property is

rightfully owned.

The core assumption then is that "ideas are property." Within the logic of this

metaphor, it makes perfect sense to extend control as much as possible. Because of our

culture's basic assumptions about property, there is little resistance when the old guard

moves to stifle the new. This metaphor is not concrete enough without exploration. Both

sides of the equation, “ideas” and “property,” are built up from numerous simpler

concepts and are not concrete, tangible ideas in their own right. The important choices

that lead us to “ideas are property” occur below this level. In this chapter, I aim to

examine the basic metaphors that currently shape our understanding of how people relate

to their ideas. I will focus on the consequences of our basic choices about what “idea”

and “property” mean. We create a model of what an “idea” is based on a comparison to

something tangible, like a physical object, labor, or land, and this choice carries far-

reaching effects on the legal framework that we apply and on how we as creators of

content relate to the fruit of our efforts. Once this foundational analysis is established, I

will point out some alternative metaphors that could structure the "intellectual property"

discussion around different logic, revealing some flaws in current understanding and

providing possible avenues for arguments that emphasize different values than concerns

about property.

2.2 Lakoff and Johnson’s approach:


We can structure our ideas with conscious use of metaphors. George Lakoff and

Mark Johnson argue that the basis of cognitive activity is metaphor. Their theory departs

from the classical theory of metaphor as a mere poetic device, because they claim that

metaphor is located in thought instead of language as “the way we conceptualize one

mental domain in terms of another”.19 This model is useful as a basis to analyze ideas,

and more importantly, to build new structures of meaning that can force reconsideration

of an issue from a new perspective. By arguing that meaning is transferred from one set

of related concepts to another through a metaphor, this theory allows us to explore

concepts by tracking their meaning back to “source domains.” A source domain contains

a set of relationships that match up with characteristics of what is to be described. The

relationships in this domain are transferred to inform those in the “target domain.” One of

the main implications of their theory is that arguments are built upon metaphorical

relationships. The metaphors in play on a particular topic are the source of the logic for

the arguments, so that relationships within the source domain of the metaphor define the

structure of relationships in understanding of the "target domain."20 To argue effectively,

you must establish a metaphor that will guide your thinking and then apply the logic of

the source domain to the topic at hand. If the parties can agree upon the foundational

metaphor, then the only question becomes how to apply the relationships from one

domain to the other. If you wish to disagree with one's conclusions, you may either attack

errors in the transfer of understanding from one domain to another within their guiding

Lakoff, George. “The Contemporary Theory of Metaphor.” Metaphor and thought. Ortony, Andrew ed. 1.
19

1992. http://terpconnect.umd.edu/~israel/lakoff-ConTheorMetaphor.pdf . For a complete picture of Lakoff


and Johnson’s metaphor theory, see Metaphors we Live By and Philosophy in the Flesh and for examples of
how their theory applies to literary metaphor see More than Cool Reason by Lakoff and Turner.
20
Lakoff, George and Johnson, Mark. Metaphors We Live By. Chicago: University of Chicago, 1980. 3-15.
metaphor or you can attack their guiding metaphor itself. Lakoff and Johnson’s definition

of metaphor attempts to destroy the distinction between literal and figurative language,

and one of the primary consequences of this is realizing that metaphorical language can

be true or false21; a conclusion may be false if based on inapt metaphors, and it might be

overturned by selecting source domains that better fit the target.

The source domains of framing metaphors must be carefully selected to fit the

target domains. Not all choices are good matches. We can analyze how well a particular

metaphor fits by comparing how relationships in the source domain are matched with

relationships in the target domain. Mismatches occur where elements of the source

domain cannot each transfer onto similar elements of the target domain or important

elements of the target domain have no corresponding concept to draw meaning from the

source. For example, in the early days of the Internet, commentators described it as an

“information superhighway”, which captures meanings from transportation that imply

speed and modernity, but fails to encompass the fact that each of the Internet’s users have

a different “destination” and come across information from many sources. A revised

transportation metaphor drawing not on the one-dimensional “superhighway” but the

whole of the road network would better encompass the multiplicity of possible “trips”

and “destinations” because the relationships within that source domain more accurately

map onto the shape of the Internet.

Even if some concepts do not map coherently, it does not necessarily mean that

the metaphor is useless for framing the issue or as a basis for argumentation, but we

should pay attention to where deficiencies occur, because this could indicate an

21
Lakoff, “The Contemporary Theory of Metaphor” 2.
opportunity to introduce an alternative frame. Part of my goal in this chapter is to

evaluate how well current models actually fit the realities of how ideas function.

2.3 “Ideas are Property”


The principle that governs the legal approach to this matter is “ideas are

property”, but this is a compound metaphor. Both “ideas” and “property” are based on

more basic relationships, so these components must first be examined separately in order

to make sense of the whole.

The abstract label "idea" is hard to describe in concrete terms, so a metaphor is

necessary. We can flesh out some properties of ideas to examine by looking at examples

of “ideas” in language. Possession is suggested when one says "I have an idea” and

acquisition when you say “I got an idea”. Ideas have value: "you can take that idea all the

way to the bank”. They can also be transferred, which we can see through the common

phrase, "he gave me an idea." This is a phrase that would mean something completely

different if ideas were a physical resource. It would then denote a change in ownership of

the resource, specifically for free, because the verb is "give". When we say "he gave me

an idea", we are not talking about any intellectual property agreement that occurred, but

instead we are saying that something he said triggered a separate thought in my mind. It

is significant that while it sometimes is used to cite a source (designate who an idea came

from), we use this phrase especially when the "idea" referred to is not identical to the one

he had but is an improvement upon it, a derivative work. I think this usage of “give” is

closest to the intuitive way ideas work, and it is upon this framework of interaction that

copyright imposes restrictions. Derivative works are subject to the copyright of the
source, and permission must be cleared or licensed in order for me to be able to use an

idea that someone "gave me".

Now that I have found a few important characteristics of ideas, the next step is to

identify the source domains that are drawn upon. Of primary importance in what

constitutes an idea is its origin in the labor of an individual human being. An idea is the

product of human labor as many manufactured artifacts are, and accordingly the

manufacturing process of physical artifacts, either on the craft level or industrial scale,

informs understanding of ideas. A mapping of a metaphor based on this domain, “ideas

are manufactured physical artifacts,” reveals the elements of the artifacts domain that

transfer over to provide some of the meaning underlying ideas.

2.4 “Ideas are manufactured physical artifacts”


The following table maps the metaphor, “ideas are manufactured physical

artifacts”. The source domain on the right contains prototypes that provide patterns for

understanding of parallel items in the domain of ideas, and this understanding works its

way into the legal interpretation. This metaphor may be responsible for some of the

meaning people ascribe to “ideas”, but not all the matchups make perfect fits. Like we

saw with the “information superhighway” example, some patterns in the source domain

do not fit the true “shape” of the target domain.

Ideas are manufactured physical artifacts.


Ideas have content in intangible  Manufactured objects have content, in
form that can be assessed through their shape, materials, and applicability.
communication and thought.
An intellectual author creates an  A manufacturer creates a physical
idea. artifact.
An idea can be distinguished from  One physical object is distinct from
other ideas based on the content. another based on its content (form,
practical use)
Ownership of Ideas may be  Manufactured artifacts may be
permanently transferred to others permanently transferred to others (selling
(By selling a copyright to an idea a title, for example)
you create through a work-for-hire
arrangement, for example)
Ideas may be temporarily licensed  Artifacts may be leased to others (Others
to others (Others gain access to the gain access to property by paying the
idea by paying a fee) owner a little money)
Ideas are nonrivalrous (One person <-/- Physical objects are rivalrous (when one
possessing the content does not has a certain artifact, others cannot
preclude another from possessing simultaneously possess it)
the same content)
Ideas are naturally “fugitive”— <-/- Owned physical artifacts will not escape
They cannot be naturally contained naturally.
Ideas are accessible to individuals <-/- The content of physical artifacts is
by acquaintance and then accessible when possession is
continually freely accessible temporarily shared, transferred, or
afterward. You cannot take an idea permanently sold or given.
back from someone once you share
it.
Ideas are infinitely duplicable with <-/- Physical artifacts take time, resources,
minimal cost with (far less labor skill, and labor to produce. Some per-unit
than originally devising them) costs can be reduced by mass production.

The first three concepts fit well together. The most important and identifiable

characteristics of ideas are that they have specific content distinguishable from other

ideas, and they have an author. These characteristics have good matches from the

physical artifact example. It is difficult to define exactly how one determines what

content is within the bounds of a specific idea because ideas are so interrelated in general,

but the understanding through this metaphor is that there is a quantity of specific content

within an idea as if in a container. “Ideas are manufactured physical artifacts” makes the
transition from the physical to the intellectual through this basic container metaphor,

suggesting that an idea may be separated from those surrounding it and

compartmentalized. When the law considers ideas from the perspective of this metaphor,

it treats ideas much like the discrete physical objects they are modeled after and through

the creation of a limited monopoly, assigns them to particular owners.

Ideas are deemed distinct from each other as parcels of land are separate. The

ability to do this in land comes from the fact that property is spread across space and that

property may be allocated according to its location within space because space may be

compartmentalized. To do this to ideas is to make a similar assumption about the nature

of intellectual content. The assumption that ideas are discrete forces courts to determine

the boundaries of an idea when a competing author promotes something that another

author deems too similar to his own work.

The next two pairs,

Ownership of Ideas may be  Manufactured artifacts may be


permanently transferred to others permanently transferred to others (selling
(By selling a copyright to an idea a title, for example)
you create through a work-for-hire
arrangement, for example)
Ideas may be temporarily licensed  Artifacts may be leased to others (Others
to others (Others gain access to the gain access to property by paying the
idea by paying a fee) owner a little money)

are interpretations of ideas in the law based on the law’s model of physical property.

Under the law, authors are given a type of ownership similar to their ownership of these

physical artifacts. They have the powers of selling or leasing this ownership as they

would a physical artifact like a car. The rest of the pairs on the list are matchups where
the parallel elements differ in shape, so any transfer of meaning about these facets of

ideas may yield a faulty understanding. Ideas are nonrivalrous, which means that one

person’s possession of it does not preclude equal possession of the same idea by another

person. Transferring ideas does not work like transfers in physical property. When you

let a person have an idea you have generated, you still have what you had before, have

not depleted your supply any. There is enough of an idea to go around for everybody, and

by gathering together many ideas in the head of one person, there is no corresponding

loss in another’s head.

This is not a dynamic familiar to the world of physical goods. When you “give

somebody an idea,” this doesn’t indicate a transfer of ownership as in the physical world.

This phrase is evidence of a mismatch in this metaphor, that another metaphor may be

more apt to cover understanding of how an idea might be transferred. The following pairs

in the chart elaborate on this mismatch around how ideas are exchanged or shared, how

they spread, and how they can be used. Unlike possessing a physical object, once you

come into possession of an idea, you may not ever be able to lose that possession.

Forgetting is not an act of will as selling a physical good is. Ideas are “naturally

fugitive”22 in a way that manufactured artifacts are not, meaning their spread cannot be

contained or recalled. You cannot control who thinks your ideas unless you never tell

another soul. As one of the founders of the free software movement, Richard Stallman,

famously put it, “Ideas want to be free.”23Owners cannot have perfect control over their

22
When something is naturally fugitive, it would escape at any chance, like a wild animal, and there is no
long-term hope of containing it.

MacQueen, Hector,. Waelde, Charlotte., and Laurie, Graeme. Contemporary Intellectual Property Law.
23

New York: Oxford University Press, 2007. 227.


"property" because there is no natural exclusivity. The law enforces some kind of official

exclusivity by prohibiting people from retransmitting the ideas of others, but there is no

way to prevent somebody from holding your idea in their head.

Ideas are spread merely by acquaintance because the cost of their duplication is

merely memory. In the case of copyrightable content of the digital sort (for which “idea”

is a source domain), copying costs are minimal: perhaps a little bandwidth or the cost of

another means of transfer, such as a CD-R. The duplication of an idea or digital content

has a far lower cost than the initial work of creating the idea. Promoting it intentionally

may pose additional costs, but there is hardly a monetary cost of voluntary transfers in the

Internet-enabled world.

Because the first three items are such good fits, the metaphor applies and transfers

meaning into the legal interpretation, modeling the legal treatment of ideas around a

pattern of ownership as if ideas were physical artifacts. I believe it is the strength of the

first two items as the most important characteristics of ideas that makes this metaphor

strong enough to be the basis of some important aspects of the legal treatment of ideas

despite the poor matches further down the list.

2.5 “Ideas are Natural Resources”


Manufactured physical goods cannot provide a sufficient range of meaning for

“ideas.” Mere labor fails to produce ideas reliably. Writer’s block kills time to no gain.

Thankfully, parallel metaphors provide “ideas” with meanings from other domains. When

labor fails to produce an idea, the process feels more like a failure to discover the idea.

Discovery better characterizes the “Eureka” moment when a new idea is born. This opens
up the metaphor that ideas are like natural resources. Unpacking this metaphor reveals

mappings as follows:

Ideas ar Natural Resources


e
An author or originator comes up with  A prospector discovers and extracts
an idea. natural resources.
New ideas come from somewhere, out  Natural resources are found on or in
of a context of previous thoughts or land, placed there by natural forces. A
culture, perhaps. One set of ideas may patch of land may contain small or large
be fertile ground for many reactions. quantities of valuable material.
An idea has content that varies widely  Extracted natural ores have content of
and is suitable for diverse purposes. (It various minerals that vary in
has instrumental value because it can instrumental value depending on their
be used to do things) application in the marketplace.24
The originator or others apply ideas  The originator or others make finished
and make finished products from them. products from the natural resources. (A
(A publisher prepares a manuscript into jeweler fashions a gold ring.)
a book.)
Ideas may be exchanged in notion,  Extracted natural resources may be
draft, or finished form. exchanged directly. Interest in claims of
minerals still in the ground also are
available.
A customer buys the idea in finished  A customer buys a finished product
form and enjoys it. made from an extracted natural
resource.
Exchanges of ideas in digital form may <- Exchanges involve transaction and
only require bandwidth. /- transport costs.
Digital copies of ideas may be made <- Copies of finished products may not be
with no loss to the original. /- made without new materials.

This metaphor lends some different and complementary meaning to “ideas” than

the mappings for “ideas are manufactured physical goods,” but it still carries the same

mismatches between characteristics of the physical and intellectual domains. In

recognizing the process of milling raw ideas into usable forms, this metaphor

In addition, both ideas and resources may have value that is not quantifiable by the market to the
24

originator
incorporates “ideas are manufactured physical objects” into its effort to better explain the

origin of ideas. Here, the origin is as natural resources, in a process outside the control or

ability of mankind. A hillside with ore deposits is like the place from which an artist gets

his ideas.25 I believe the discovery metaphor of “ideas are natural resources” is an attempt

to describe the origin of ideas, although it is not a perfect fit.

This metaphor does not precisely describe the location from which ideas come, or

even whether the source of ideas is a renewable resource like a forest or a nonrenewable

resource, such as a coal deposit. The characteristics of each resource type may deserve

different treatment, but as human perception of where their ideas actually come from are

unclear, the metaphors that have grown up to describe them are also each unclear. If we

are able to introduce new metaphors to get a clearer meaning for “ideas,” we should test

them to see how clear the origin story for ideas is and whether it fits well with the

properties of ideas.

The domain of natural resource gathering and investment provides a market-based

example to determine the value of an idea, by the owner negotiating and selling it as a

commodity. The nonrivalrous nature of ideas again challenges this metaphor, because this

is a key difference between tangible goods and intellectual content. Intellectual property

law allows rights-holders to sell those rights completely or license them without losing

any control outside the license.

This place is mysterious even to those who “get” ideas. The Far Side cartoonist Gary Larson feared
25

answering the question “where do you get your ideas?” because he did not know. He identified coffee as an
important component of the process, but could not describe anything about where his ideas came from. See
“The Far Side of Gary Larson” The Independent. 18 November 1999.
<http://www.independent.co.uk/news/people/the-far-side-of-gary-larson-743135.html>
2.6 Value
Resources have value, but can we decide how to compare an idea’s value with

that of a physical good? These metaphors based on physical objects introduce the market

appraisal, but this process is shaped by the rules of the market. An idea’s market value

would mean something completely different if the legal monopoly of intellectual property

simply did not exist. Instead of depending on the value of licensing contracts, market

potential would be more a matter of finished products and end-consumers. Maybe we

should weigh value to everybody in each situation and compare them. The value to the

owner, if controlled combined with the value to everybody else (if controlled), against the

value to the originator (if free) combined with the value to everybody, (if free). Market

value to an owner of IP is typically estimated as the amount of money one can make from

it, but this total depends on the methods of money-making the market prescribes. Can we

apply this measurement to an item's value to the members of society who do not have

control over its economic use? When this content is controlled, we could perform such an

analysis, but we would have to consider that the content would have value to non-owners

only if the amount of money they can make from the content exceeds the transaction cost.

Transaction costs do apply to IP. To use the content, individuals must make a connection

to it (find a piece of information, acquire it, incurring connection and bandwidth costs,

for digital files transferred over the Internet.

This model of value-assessment and ownership is entrenched in the law and

public common sense despite the mismatch caused by the duplicability of idea. The

metaphor is mostly rational, so people ignore the odd incompatibility and treat “Ideas are

Property” as the logical approach to understanding ideas in the legal setting.


2.7 Complications of “ideas are property”
The domain of physical objects, mined and fashioned into useful form is a pretty

good fit for ideas overall. There is clearly a significant jump from the concrete to the

intangible in this metaphor, but this does not come as a surprise. Complex metaphors are

the typical method of understanding concepts that are intangible. The source domains

drawn on for some important metaphors for concepts like love and time are also rooted in

physical space. "Love is a journey" and "time is going by" are familiar expressions that

anchor these complex concepts in our understanding of our interaction with the physical

world.26 The intermediate steps to property in ideas are also informed by the physical. We

understand intangible property like a land title through a base metaphor of controlling a

fully tangible object. This extension of the set of ideas associated with basic property to

not-quite perfect examples forms a template for extension to completely intangible things

like ideas.

Each sub-mapping of "ideas are created objects" transfers understanding from the

world of property that ties all content to an owner. Property can only exist as property if

there is an owner, so in transferring this frame to ideas, the connection between author

and content takes on characteristics of ownership. In order to understand the various

characteristics of how an idea relates to humans, the familiar template of the market is

activated, and all parties to idea transmission are fit into the roles of purchaser and

supplier.

26
Lakoff and Johnson, Metaphors to Live By, 25.
When an individual owns physical property, she controls both what is done with it

and who gets access to it. Legal protection in both domains allows the owner control over

the content by enforcing his or her rights to control access.

To actually transfer the content as property is to sell the right to it. This process

happens by a number of means. A content creator could create commissioned work, such

as designing a logo for a company, or perhaps creates content he feels to be of value then

tries to market it, by submitting a manuscript to a publisher. Or when working for a

corporation the creator sells the ownership rights to all creations he or she develops while

at work.

In the domain of physical property, non-owners can gain access to the value of

property through other means than purchasing it. A series of lessees can pay to enjoy an

apartment or a backhoe without gaining ownership rights over it. Applying this

relationship to ideas leads to licensing, where people pay a content owner for access to

the content without gaining ownership over it. Physical goods usually may only be

enjoyed by one user or group at a time, but providing many with access to digital content

is negligibly more expensive than to few because through digital duplication there are no

physical barriers limiting the number of people who can access it at a time.

Despite the quirks, I think “Ideas are Property” seems to "fit" because the

connection between property and an owner mirrors the intuitive connection between a

creator and his or her idea. The intellectual property metaphor allows this connection to

be protected by law.

2.8 Criticism of the Intellectual Property Metaphor:


Like any framing metaphor, we can criticize the utility of the Intellectual Property

metaphor. The legal application of “Ideas are Property” is based on the protection

afforded under the Copyright Acts, laws passed by Congress under authority granted by

the Copyright Clause. 27 In the US Constitution, the Congress's right to provide a

copyright to authors is justified in terms of its incentive ability to promote progress. The

creation of new ideas is the goal of any policy derived from this authority, just as the

manufacture of greater material wealth is a primary justification for private ownership of

created artifacts. If the current intellectual property regime is building more barriers to

the creation of new ideas than opportunities it is not justified.

We may apply the same test to methods of relating to ideas, even at the individual

level. Individuals have a responsibility to examine their own relationship with their ideas

to determine if their legal or philosophical perspective creates more problems than it

solves. Content creators should consider the consequences of the methods of legal

protection they exercise and use only those that promote progress. This means that where

legal protection is necessary in order to allow an author’s creation of content, it may be

justified, but when intellectual property protection is used to raise the barriers to entry,

they limit others’ ability to work with existing content, which impairs progress.

Creators of intellectual content must recognize this balance and build their

relationship to their ideas in its light. The Intellectual Property metaphor may not be the

most useful approach to ideas. The domain of physical property and the arrangements

that govern it do not precisely inform the arrangements necessary for ideas. The

conception of IP as property means that permission must be asked for use. This creates a

27
Art. I, §8. 8.
high barrier to use (relative to not needing to ask permission). While ideas may float

around easily, actually obtaining the permission to use an idea for some purpose is an

unreliable and potentially long or expensive process. We may be able to construct an

alternative metaphor that captures the key facets of how we could relate to ideas without

the high barriers to remixing ideas.

Outside the argument of utility is the question of whether the Intellectual Property

metaphor is coherent and complete enough to form the foundation for something as

fundamental as our relationship to ideas. The source domain of framing metaphors must

be carefully selected to fit the target domain. Not all choices are good matches. We can

analyze how well a particular metaphor fits by evaluating each mapping (across each row

of the table). Mismatches occur where elements of the source domain cannot each

transfer onto similar elements of the target domain. Such mismatches produce metaphors

that are fragmented or don't explain very much because of having only a couple valid

mappings. Even if some concepts do not map coherently, it does not necessarily mean

that the metaphor is useless for framing the issue or as a basis for argumentation, but we

should pay attention to where deficiencies occur, because this could indicate an

opportunity to introduce an alternative frame. In the case of “ideas are property”, key

differences between ideas and its source domains cause this metaphor to fail to promote

progress.

The most important facets of ideas have similar partners in source domains where

objects are owned. The facts that ideas have content and authorship find solid pairing in

the domains of manufactured physical objects, and natural resources. In these domains

our legal system allows systems of private ownership to govern rights of control and
exchange. In a market for natural resources or artifacts, or even in land, payment is made

to initiate movement of content. Ideas are property” allows this familiar system to extend

into the realm of ideas and expressions in content. This means that the flow of content

from an author to his audience and the return flow of compensation are directly related.

Individuals and the law have accepted this metaphor to relate to ideas complete with an

artifact-based understanding of how content should be distributed. However, the fact that

ideas and digital content are reproducible at virtually no cost causes mismatches in each

of the metaphors for “ideas” that support the property model.28 We have built up a system

of idea exchange based on the notion that ideas should be exchanged only paired with

payment, as must be done with owned objects to ensure a successful flow of

compensation. This flow is necessary in order to justify labor to create, discover, or

improve content and is an essential part of any idea regulation scheme that aims to meet

the Constitutional goal of progress. However necessary compensation’s existence, it is

not inevitable that it should take the form of buying a physical product. An idea created

by one person could spread so widely that everyone on the planet had the complete idea

without any additional labor from the original author. This is a dynamic so unfamiliar to

finite resources that we should closely examine whether setting up a compensation

scheme based on that model makes sense. Where resources may be collectively enjoyed,

alternative means arise to pay for them. The public pays for public goods like natural

environmental resources, parks, and roads collectively through one such arrangement:

taxes. Other public resources like National Public Radio gain the majority of their

28
I treat digital content as an “idea” because it is protected under intellectual property in the same way that
other expression of ideas are. The law regulates copies, and whenever digital content is used or read, a copy
is made.
funding from private donations, and still others, like the shows cable TV are paid by

subscribers and advertisers. Alternative means exist, but the assumption that ideas should

be private property still rules most content creators’ relationship with their ideas and

provides the foundation for the law. The assumption that ideas should be property gives

rise to the conclusion that more control is better without considering the dampening effect

tight control has on expression. The public largely ignores the systemic effect on progress

as long as compensation is flowing. As with other forms of private property, the legal

system provides the rights, and the property owners must use them to extract value

themselves. The fact that the system provides some compensation to idea creators is only

half of what is necessary to create progress. Under tight intellectual property control,

content may be licensed for the use of those with the money and time to negotiate and

pay to clear content, but those without corporate resources face enormous barriers to

entry into the “conversation” of the newest ideas. In focusing solely on the compensation

half of the problem and embracing the assumption that more control is better, the public

abandons the necessary freedom to use the best content available to come up with even

better new ideas.

We need a metaphor that promotes progress better than “ideas are property” to

convince artists and other creative workers to respect the balance between protection and

freedom if the best progress is to occur. Progress requires that artists receive

compensation, but it also depends on a healthy commons. If individuals recognize this

necessity and that the strong property rights granted to them under the current regime

provide them the power to choose the amount of freedom that others will have, they may

come to choose a healthier metaphor on their own.


2.9 Returning to the intuitive understanding of an
idea
In structuring our understanding around the preceding metaphors, we have driven

the meaning of “my idea” far from the sense embodied in the intuitive phrase, "he gave

me an idea." I like to think that when you "give somebody an idea", it's more like giving

them something than letting them peek into your secret box, even if that person goes and

makes money because of the idea. There are a different set of incentives related to giving

than the familiar set of incentives associated with intellectual property restrictions and

licensing. One might receive good karma or self-satisfaction from giving when one

would not necessarily feel the same from selling. These effects of giving are enhanced by

popularity, which increases the amount given away. For those whose ideas become

known, they can feel they have given something of value to many. These probably would

not outweigh concerns of material compensation. I would argue that receiving money for

one's work is not directly comparable to alternative incentives because money is more

important. Money makes so many basic needs possible, that people prioritize it when

those needs are unmet. Nutrition and shelter are directly related to the ability to bring

home the bacon.

Abraham Maslow proposed an explanation of the prioritization of needs in 1943.29

In Maslow's version, needs occupy strata of a pyramid with the most basic at the bottom.

Secondary motivators come into play after the foundation of basic necessities is built.

Once basic needs are out of the way, those higher in the pyramid take priority. Once you

have a savings account and an apartment in a neighborhood you like, incentives at levels

29
A.H. Maslow. “A Theory of Human Motivation.” Psychological Review, 50. (1943):370-96.
of social connection, like making friends through content, can become quite important. It

is hard to understand a lot of the different types of connections individuals can make

through the internet or assign relative value to them, but their value does exist.

How does this reasoning apply to the behavior of authors and artists? Content

creators who seek to fill their needs through this work will seek to fill them in an order

like the one Maslow proposed, which means that money usually has to come first before

social benefits like recognition will be important. But we must recognize that these

alternative incentives are important as well. They may not justify much labor alone, but

where transaction costs are low, they may justify creation of content for little material

compensation.

The current legal assumption that intellectual property is established at the

moment of content's creation automatically ignores the possibility that an alternative set

of incentives may suffice to incentivize the production of a work. The present system

assigns a particular reward (exclusive rights) to authors who may or may not need those

rights to produce content.

Creators should be aware of the metaphors that describe their individual

relationship to their ideas and should consciously know the extent of their choice. They

should examine their motives to see whether they need the full protection of copyright.

They should be aware of different possibilities, different ways to be connected with their

ideas or with people who access them. Questions of framing to consider include, “what is

your personal incentive to produce content?” While an economic interest may be primary,

it is important to also take note of other goals that content production accomplishes.

Asking oneself “how am I incentivized to provide access to this content?” may reveal that
“ideas are property” may not offer a well-tailored solution to your needs in its assumption

that compensation should be exchanged directly for content. Perhaps a distribution

scheme that emphasized freer accessibility could deliver similar results in terms of

compensation while providing more people with rights to peruse and improve upon the

idea. Providing the public access to content is the overlooked component of the

Constitution’s goal of progress. Its absence in most individuals’ relationship with their

intellectual property stifles an inestimable amount of progress. Furthermore, the legal

protection has failed to prevent this kind of access. “Piracy” of owned content has grown

massively with the expansion of the Internet, and infringement of copyrighted material

used in unauthorized “remixes” of culture has proliferated with the availability of easy-

to-use editing tools.

2.10 The Maintenance of Property and Ideas


Property in the real world, both in real estate and artifacts, is a domain in which it

makes some sense to allow exclusive individual ownership in order for owners to enjoy

the full benefits of the property. Individual ownership is a system by which the benefits

and responsibilities to maintain property are distributed. The distribution itself or the

method to achieve it may be unjust, but its intent to distribute value across a population is

honorable. Systems opposing private ownership of physical property try to achieve the

same goal. For example, state or communal ownership are alternative schemes to divide

benefits and responsibilities associated with property.

Physical property usually carries responsibilities along with ownership, such as

the responsibility for maintenance so that its content does not depreciate. The only

consequence of not following through on such a responsibility is the potential


depreciation of the property, and in some cases very little work must be done to prevent

depreciation of the property value. For example, a speculator holding oil or water rights

on a particular tract of land may see the value of the property go up without lifting a

finger. The depreciation of an individual’s property (either a house or a record player) has

few consequences beyond that individual. The public’s supply of available houses or

record players is not meaningfully diminished. But when we talk about ideas and the

Constitutional goal of progress through the development and spread of ideas, we

recognize that this content is a public good and that its protection is in the public interest.

Due to the nonrivalrous nature of ideas, a good idea is a house that all may live in. If it is

lost, many are affected. A piece of digital content or an idea is only lost if all copies are

destroyed. Thankfully, its nonrivalrous nature makes its maintenance far easier for a large

group of people. If a piece of content, perhaps in the form of a digital image, is of value

to many people, each might possess an exact copy, and society would be unable to lose

the image unless nearly every copy were destroyed. The cost of this maintenance to each

person who values the image is negligible and a natural byproduct of keeping it around

for enjoyment. Thus the benefits and responsibilities associated with this content are

distributed to those who care about it and not to those who do not.

The main mechanism for distribution of benefits and responsibility across the

American population is the system of property ownership by individuals. But this is not

the only way mechanism available for accomplishing such distribution. Even under a

regime predominantly of individual ownership, it makes sense to hold some portion of

the resource in the public's name. For certain types of land, and for certain purposes,

public ownership is necessary or makes more sense. These lands provide some public
good, from the land used for parks and roads to that used for public buildings or military

installations. In such cases, the public may enjoy the benefits and must collectively pay

for maintenance. Thus, this is a separate method of distributing benefits and

responsibilities over a resource. It is a separate solution to the same problem, a solution

which is applicable to a certain subset of the land resource because based on the specific

character of the resource and how it can best benefit the public

As the example with the distributed digital image showed, intellectual content

needs a different kind of maintenance than land or physical resources and at the same

time offers opportunities. The value or quality of content may degrade with neglect, and

it is possible to lose an idea altogether if all copies are abandoned or destroyed, as many

of the writing of ancient cultures have been. Historians have scant resources to learn

about societies that failed to preserve a written history. The collection of documents from

any specific year of history starts decomposing immediately. The vast majority of books

and recorded music are out of print at any one time.30 The unavailability of the majority

of content is a result of the weakness of a locked distribution model where only one

publisher may reproduce copyrighted content. This opposes the “natural” way of saving

and sharing ideas that is possible for content not locked down.

Individuals save tidbits that are valuable to them and discard other pieces over the

long term. Popular ideas exist in many copies distributed all over the network, digital or

human. While computers with large hard drives and fast Internet connections are

reducing the costs of archiving digital content, the present intellectual property regime

limits the public’s ability to preserve pieces of the emerging digital culture by making

30
Lessig, Remix. 260-261.
unauthorized reproductions (archive copies) illegal. Adding the barrier of a crime to the

process of publicly maintaining ideas may prevent many people from archiving content.

There comes a time in the life of an idea or piece of content when its commercial value

may not justify a publisher keeping it in print or even publicly available at a web site.

This content may still have value in the present or to future historians, but in these cases,

the protection intellectual property law grants to the originator adds the risk of litigation

to the previously negligible cost of archiving individually valued content. Where people

follow the law, the system is subject to the limitations of the single-publisher model, and

people find content less available. Where infringement occurs, content may be convenient

and readily available from a plurality of sources.

An example of the failure of the single-publisher model more modern than out-of-

print books is the potential fate of Digital Rights Management (DRM) protected audio

files. DRM imposes limitations on users’ ability to use downloaded files in unauthorized

ways. When a track is purchased from the popular iTunes Music Store, customers’ ability

to enjoy the file is limited to listening on hardware and software that are compatible with

its DRM. For example, such a file may not be played on many of Apples’ competitors’

portable audio players, and the file may not be burned to CD or copied to multiple

computers. If we consider these files as ideas, they are not ideas that are subject to the

natural sharing dynamic, where transmission costs are minimized by effective

communication channels. For the protection of the intellectual property owner’s rights

against the natural tendency to share easily-reproduced content, DRM files are typically

authenticated with live web servers. If this process fails, the file is rendered unplayable. If

the company providing the DRM server fails, all the content purchased through that
system potentially becomes useless. Consumer reaction against the limitations of DRM

software in opposition to their understanding that when they purchase a good, it should

be theirs, has caused a number of DRM-based music stores to go out of business or

reconsider offering this kind of music store. When this happens, there is a risk that the

expensive DRM servers will go offline.31 Consumers expect their purchase to work as the

intellectual property metaphor claims, just like real goods do in the traditional economy.

DRM, which serves to maintain authors’ control over content they have sold, has no place

in the market for physical artifacts, land, or natural resources. It is like the fate of a home

lessee who makes all her payments only to be evicted when her landlord busts. It is a

possible outcome that the DRM-provider would go bankrupt or reconsider the cost of

running always-on DRM servers, but such an occurrence is not fair to its customers. The

risk of losing purchased DRM tracks, which are less capable than clean files, makes

many customers skeptical of such an investment. Furthermore, as the following comic

references, the Digital Millenium Copyright Act (DMCA) makes circumventing DRM

technology a crime.

“Wal-Mart Joins MSN and Yahoo and leaves DRM key servers online.” Ars Technica.
31

<http://arstechnica.com/news.ars/post/20081010-wal-mart-joins-msn-and-yahoo-leaves-drm-key-servers-
online.html> Last retrieved 11 November, 2008.
1. Munroe, Randall. "Steal This Comic." xkcd. 13 Oct 2008. <http://xkcd.com/488/>.
Released under a Creative Commons Attribution-NonCommercial 2.5 License.

“Piracy,” as the unauthorized duplication of protected content is called poses only the

disadvantage of illegality without the physical inconveniences of the legal DRM option.

Munroe jokes about the advantages of piracy, but this point has a serious side and returns

our attention to the possibility of alternative metaphors for thinking about our ideas as

well as alternative systems to collect compensation for releasing that content. Munroe’s

webcomic xkcd is his full time source of income, yet he releases his content without any
DRM. The pictures come in a standard nonproprietary format32, and through declaring

this content’s release under a particular Creative Commons license that guarantees free

license for noncommercial use, the value of this joke can be spread for free without

piracy. Munroe receives his income for the comic from selling related products, such as

T-shirts rather than requiring licensing fees for use.33 I feel the real point of this comic is

the same as my project here: not that you should pirate, but that artists should recognize

the potential to give their audience content of value without resorting to obnoxious DRM

schemes at all. His comic’s success comes from the ability of his audience to share the

content with each other.

Divergent approaches to maintaining content within a culture exist. Structures

might be built upon either of the models in place for land or a structure from a different

resource distribution network. The key is that the network design should fit the shape of

the resource. In the case of the laws of property governing intellectual expressions and

digital content, the content maintenance scheme does not fit the shape of the content.

2.11 “My Idea”


As is now clear, I am fighting to create systems of content-distribution for which

the statement “he gave me an idea” rings true as the natural way to relate to ideas. This

primarily reflects the fact that when an idea is communicated, it is copied not transferred.

An individual cannot lose an idea unless he forgets it and must delete a digital file. For

ideas in digital form, one must delete a file to be rid of it. Computer users know this

Munroe chose PNG (Portable Network Graphics) for his comic’s filetype. This format is freely available
32

for use, so it is possible to read the comic on a wide variety of software without requiring software that
must pay for a license in order to view images. See Wiggins, Richard H. et. al. “Image File Formats: Past,
Present, and Future.” Radiographics. 2001;21:789-798.
33
Munroe, Randall. “About.” <http://xkcd.com/about/>
intuitively. When they send a file in an email, they do not expect to have to wait until it is

returned to read it again. Under this reasoning, when I share an idea with my neighbors,

each could then turn around and say, “I have an idea” about it. But when asked whose

idea it is, they would logically point to me and say it is my idea that they have.

These dynamics of possession underscore the importance of authorship to

thinking about ideas. It is part of the appeal of the "ideas are property" regime, and it

must remain a primary piece of a reworked metaphor that would lead to a different and

healthier arrangement. Under the current copyright regime, as an author, I can say

something is my idea. "My" refers to the exclusive ownership protected under the law as

it also refers to the fact that the idea arose from my labor and ingenuity. An author gains

compensation for her idea in the form of recognition, or, sometimes, direct income like

royalties or license fees. Content flows from an author to audience, and compensation

flows to the author.

Plagiarism is a problem that interrupts these flows. It occurs when an individual

who did not originate an idea claims to have done so and takes credit for its generation. It

is a type of “freeriding” where the plagiarist takes advantage of the labor of another to

reap the benefits the real author should receive. It is successful if the scam is not

uncovered and people do not find out that the claimed author did not in fact generate the

content. Plagiarism is a problem because it diverts recognition, compensation, and

benefits from an individual who deserves them to one who does not, shorting the

deserving one in the process. Where plagiarism exists, the authorship element of ideas is

broken. The benefits accorded to the author of an idea are not nonrivalrous like the idea

itself, so it is important to ensure that these resources go where they belong. Directing
them elsewhere is a more accurate example of theft in the world of ideas than the

duplication of correctly attributed content, but it is this second exchange that has been

focused on as “piracy.” The proper direction of recognition is critical to maintain the

incentive effect that is the goal of any intellectual property arrangement. If the system

appears broken in its allocation of rewards to those who originate ideas, there will be no

confidence in the fact that a prospective content producer could receive the just rewards

for his or her efforts, and therefore there would be more risk involved in spending time,

effort, and money on creating content. Increasing the risk to dedicating time to content

creation could only lead to less content creation, so the creation of systems in which

plagiarism is easily detected is necessary to achieve Progress. Thankfully, technology

offers a solution. Where widespread archiving of content is allowed, it becomes easier to

use automated tools to detect plagiarism, which only works for the plagiarist if his theft is

undiscovered.

We could imagine different solutions for this problem. A legal solution like

copyright enforcement allows authors to prosecute those who try to plagiarize their ideas.

This system aims to prevent plagiarism by outlawing it. But there is another mechanism

available to enforce norms of plagiarism. In the final chapter, I present evidence that

modern tools make it easy to determine the origin of content in front of you, and that

reputational rewards and punishments may provide an effective mechanism to prevent

uncredited rip-offs without the need to fall back on legal solutions. If such reputation-

based methods can be shown to be effective at enforcing this norm socially, authors

would have one less reason to adopt strong copyright protection and might choose to

make their content more widely available, paving the path for a healthy commons.
The labor theory of property, which arises from John Locke's Second Treatise of

Government, suggests that people own their person and their own labor and thus have a

better claim to the fruits of that labor than any other person.34When somebody "mixes"

his labor with resources found in nature, that individual has a more direct right to the

product than someone whose labor did not draw it out of nature. When labor is necessary

to own property, there is a good incentive for all to labor and produce goods for

themselves and humanity. Applied to intellectual content, this could lead us to intellectual

property, because when one mixes his labor with existing ideas into a specific form of

expression, his labor cannot be separated from it. This could justify gaining rights over

the idea. In order for this to be fair, Locke assumes that when someone uses resources

provided by nature, there is “enough and as good” left for all others and that all have

ample opportunity to exploit nature's resources.35 In the 20th Century, after all the land

around the globe had been claimed into well-organized states and the human population

exploded, this assumption about natural resources became obviously false. The

assumption that individuals can use the full resources of the land comes from a belief that

individuals' property rights remain strong in our tradition.

The phrase "my idea" is important to how we think about the content we generate.

The phrase is intuitively true. This sentence is mine. It is on this page because of the

effort of my own fingers, not any other's. I have come to this sentence by reflecting on

the work of hundreds of other people, but I have not seen this phrase appear in another's

writing. If Locke were right about ownership arising from labor, I "own" these words.

Kramer, Matthew H. John Locke and the Origins of Private Property. New York: Cambridge University
34

Press, 2004. 139-141.


35
Moore, Adam D. Intellectual Property and Information Control. New York: Transaction, 2004. 72
Do Locke's assumptions about how property comes to be owned apply to ideas?

Like the bountiful resources that may be found in nature, the pool of ideas we may draw

upon is vast. Locke imagined that nature was plentiful enough so that use would not

diminish its stores, nor decrease their quality. The stock of ideas common to humanity,

unlike nature, exhibits these characteristics in some ways. When I cite several paragraphs

of Locke's Second Treatise of Government, there is no less left for others to use, and the

quality of his ideas is not diminished. This use would seem to be compatible with the

proviso, but the right to use Locke is not the issue. Rather, the rights claimed over ideas

through the labor theory of property are to prevent others' use, which seems to fail the

“enough and as good” test, because with every appropriation of exclusive rights over the

collective pool of content, less is left for others to assert these rights over.

If the assumptions of unlimited potential are true about the realm of ideas where

they are not as true in real property, the labor theory of property may apply even better to

intellectual content than physical possessions, but these conditions only apply if others

are able to use the content that is created. The rights claimed under this justification limit

others' use, and thus fail to leave enough for others. Impediments to the process of mining

old ideas to create new ones undermine the state of nature underlying Locke's theory that

there is enough opportunity for individuals to access resources. If Locke could claim

ownership over theories that base property in labor because of his efforts in the field, he

could force later authors to pay him to use this idea. Such a claim would limit the rights

of others to work with the same ideas, not leaving “enough or as good” for them.

Because the underlying conditions of fairness must function in order for

labor to justify ownership, "ownership" must mean something that protects these
conditions while protecting the rights of owners. I think this prevents the justification of

perpetual complete control over intellectual content, but a kind of limited "ownership"

might work if it were carefully tailored.

We need to develop a successful metaphor for interacting with ideas. In order to

be successful, our metaphor must embrace the strongest elements of the justification for

intellectual property that arise from the labor theory and recognize that my idea is mine in

a powerful way, but it must not break down the conditions that give labor theory traction.

It must provide the incentive to produce that the labor theory of property offers.

I believe that saying my idea is appropriate part of a good metaphor for how to

treat the products of our intellectual labor, because my idea distinguishes a source and

delineates between contributions made by different people, which is necessary in order to

separate different ideas and award recognition to the proper source of an idea. Plagiarism

is a violation of this goal because it interrupts the process of tracking ideas to sources, so

recognition cannot be directed properly. Proper flow of recognition and associated

benefits back to an author are necessary to establish a working incentive structure.

Making sure these benefits are adequate to justify intellectual labor is a separate problem

that I will address in the final chapter.

My ideais powerful because it is the intuitive result of the labor theory of property

logic. But must "mine" imply the "ideas are property" metaphor? This should go earlier

in you “my idea” discussion.

The ownership model is not the only possibility to describe how a content creator

relates to content, and fails to encompass how all authors may consider their content, but

it is the primary metaphor of the legal approach to ideas. In chapter four, I will examine
our legal intellectual property structure to see how it meshes with the metaphors

discussed in this chapter. We should establish or alter the legal regime to fit appropriate

metaphors of how individuals should interact with property, but this is not the entire

struggle, nor where I think the greatest change can occur.

There is room for reconsideration and for individuals to work outside the present

legal model, adopting their own metaphors for how they treat their ideas and using

elements of the available legal protection carefully to meet the goals and incentives

provided by their new metaphors. I will address new metaphors and how to use them in

the final chapter. Next is a discussion of how the way we treat ideas now, both legally

and in our own minds, will affect our posterity. This discussion reveals the importance of

what path we choose in this matter and should help reveal how our ethical responsibilities

to future generations should affect our decisions about our ideas today.
Chapter 3: Future Commons
The Constitution’s Copyright Clause offers monopolies over specific pieces of

content to Congress as an option to provide an incentive for the creation of new works.36

The public grants individual creators rights over the use of their content as payment for

action that brings progress. These rights are limited to a term, throughout which the

public pays their owner a price in three parts.

The first part of the price is the cost of access to the content. The cost of all the

copies of a particular recording sold, for example. The second part is the cost endured by

all those of the public who cannot access the content, perhaps because they could not

afford the first price. The third part is the barriers preventing creative participation with

the content because of the costs and difficulty of negotiating licenses for content. As the

individual's potential to combine existing content into new forms explodes on the

Internet, this third price increases steeply. At the end of the term, these costs dissipate. A

pharmaceutical company must leverage their monopoly to pay back research expenses

and turn a profit before patents expire. When competition is eventually allowed, profits

decrease. If content is valued when it enters the public domain, it may then be easily

preserved and distributed in digital form, now as part of a commons. The barriers

imposed by the need to find and negotiate a license with a creator diminish. The public

pays for the creation of art, music, design, and ideas over decades and does not receive

the full benefit of the content until the term has passed or the owner relaxes monopoly

control. A portion of the public's price flows as currency to the intellectual rights holder,

36
Art. I, §8. 8.
but barriers imposed to secure the author this amount result in losses of future derivative

content. This counts as part of the cost.

Despite the long term over which the public pays for content, the ideas that

receive copyright are complete when the public payment begins. Work done for this kind

of reward speculates on the rights' eventual value, either when the risk is absorbed by an

individual author or a publisher. The monopoly rights of copyrights and patents are a

reward designed to reward speculative behavior that produces content, with the best

rewards going to the best content. The public provides the economic reward buying

finished products on the shelves or digital content online. If an individual appreciates a

certain movie, he should pay to see it, in order to cover the reward for production. He is

warned that if the reward is not adequate and prompt, the producers will not get another

chance to make this kind of content, as the high cost of making a film allows studios to

gamble on a select few. It is not surprising then, that the debate around copyright often

focuses on how it affects authors and creators who are living and working today.

However, recent extensions to the term of copyright now provide protection that extends

70 years past the death of a work's author. These long terms clearly push our

consideration of the matter into intergenerational waters.

Imagine a novel, written and copyrighted this year by a venerable American

author. Suppose he dies in a decade, leaving the copyright as an inheritance to his

daughter, who dies thirty years later, leaving still forty years of copyright protection as an

inheritance to her children. There may be several versions printed of a successful novel,
but the majority of books go out of print within one year.37 Eventually, the potential to

leverage the copyright into royalties diminishes, as there are many used copies around,

and the author receives nothing when a copy is resold. Yet the copyright persists for many

years beyond this point before the work falls into the public domain. Consider the effect

this has on anyone who wants to repackage this content in a new form. Even if the

author's descendants can be found and a license fee negotiated, the cost to redistribute a

work may be too high. The result is that new variations on the author's ideas do not come

into existence as readily as they would without the protection. Additionally, the extension

of intellectual property protection pushes it far beyond many works' profitability in order

to protect a few long term gems. During almost the entirety of an average copyright’s

term, the barriers to outside production of derivative works yield little benefit to anyone.

At the same time, these barriers may counter any incentives for others to use this content

in new work.

It is impossible to measure the amount of material that does not come into

existence because of a particular copyright, or because of the copyright system in general.

It is possible, though, to observe the amount of infringing activity that does exist in spite

of intellectual property law. The staggering amount of material rebroadcast and remixed

on the Internet shows that w

The "tolerated" infringing content posted on YouTube is an example of the extent

of use that could occur except for copyright restrictions. Much of the content shared on

YouTube either copies other content directly or combines previous content with new

Lessig, Lawrence. "How I Lost the Big One." Legal Affairs. March/April, 2004.
37

<http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp>.
work. Both types of video have value to the public. People spend their time watching the

videos that contain unauthorized reproductions of copyrighted material because the

access to the original content is convenient and free or because the user-generated

additions are themselves of value.

3.1 Eldred v. Ashcroft (2003)


Eric Eldred, a publisher of public domain works sued to protest copyright term

extension enacted under the Sonny Bono Copyright Term Extension Act. The copyright

term for works authored by individuals was stretched to the life of the author plus 70

years. The immediate effect of the extension was to delay the passing of a number of

previously authored works into the public domain in 1998. The effects on newly created

works will not be felt until virtually everyone living when this legislation passed was

dead. Eldred and his fellow plaintiffs argued that allowing unlimited retroactive term

extensions, Congress could create a de facto unlimited term, which would violate the

Constitution's stipulation that terms be limited. Eldred lost in the DC District Court, then

in the DC Circuit Court and again in the Rehnquist Supreme Court on the argument that

every term extension still proposed a limited term.

The pattern of copyright term extension is increasing the intergenerational

impacts of intellectual property protection.

Lawrence Lessig, who argued the case for Eldred, points out that the valuable

copyrighted properties, such as Mickey Mouse, provide the justification and impetus for

the term extensions, the bulk of the loss to society is the harm "to the works that are not

famous, not commercially exploited, and no longer available as a result."38 Public interest
38
Lessig, "How I Lost the Big One"
and payments decline long before the copyright expires. The challenges and potential

roadblocks confronting projects that draw on a large number of copyrighted works could

crop up even more frequently, yet large-scale projects, compilations and archives have

become simultaneously more desirable and more possible, as digital technology and the

Internet provide the potential for new uses for copyrighted material that isn't popular

enough to warrant something as expensive as a reprinting. Because the technology allows

much broader access to content, people can find new value in old ideas. When the hurdles

involved with clearing a copyright are removed as the work finally reverts to the public

domain, even more people may be able to afford to use the piece to create new content. A

work that is in the public domain is inherently more immediately usable than one under

the protection of copyright, and the absolutely free cost may allow uses with little to no

profit potential that would be unjustifiable if a licensing fee had to be paid.

3.2 How the Intellectual Commons is Made


The public domain commons of future generations takes its shape both from the

institutional and legal structures of intellectual property law and how individuals work

within and outside of that system in their creation of new content and remixing of

existing works. Even if previous generations have bequeathed a too-restrictive system or

too few individual contributions of content to the public domain, the nature of linear time

is that our ability to establish or dismantle fair systems will only affect posterity. Nothing

can be done to alter the lives of those who have already died.

Our present legal framework of intellectual property law and this generation's

creators' individual treatment of their ideas create the nature and scope of the future

intellectual commons. The public domain is a collection that carries the potential to
expand perpetually as long as content is not forgotten. The only other counter to this

potential comes from expansion of the term of intellectual property protection. When the

government retroactively expands the term of authors' monopolies for x years as it has

done, the flow of content into the public domain halts for those x years.

The effect intellectual property law and jurisprudence exerts goes beyond mere

technical concerns about how long a patent or copyright lasts and how many renewals

may be granted and which forms must be filled out. The legal framework upon which

progress in the arts and sciences is built deeply influences the quantity of content that

arises. This framework should provide incentives to produce content and share it with

others as quickly and as liberally as possible.

Individual actions affect the content of future generations' public domain directly,

through the content each provides to culture. Popular content creators potentially can

affect many works indirectly, through influcincing what other creators are able to make in

terms of derivative works. Restrictions on duplication and use imposed by intellectual

property protection are one factor limiting cultural reuse of content from the "natural"

level made enabled by the work's reputation. These restrictions are imposed in the name

of ensuring that creators are able to leverage enough benefits from releasing the content

that such production is worthwhile.

An individual-level analysis reveals many options that do not arise from a top-

down perspective. Unlike other commons based on natural resources that exist largely

independent of human activity, the information commons is a product of the creation of

human individuals. This means that the various intellectual properties in the public

domain are distinguished by their creators, not by geographic location.


Individual content creators should be aware of the affect of their use of IP

protection on the commons. They should be aware of different options for placing their

content under various degrees and kinds of protection and the consequences of each

choice on the availability of access to their content. They should adopt practices of

carefully tailoring the kind and extent of protection they desire so that the protection is

the minimum amount needed to provide benefits the creator needs, such as fair payment

for the amount of work done. An author has a wide range of options when deciding what

to do with a piece of content when at the moment of creation a copyright is born. Not all

of the choices may allow the author's work to have the greatest impact, because some

options may reduce a work's exposure due to overzealous protection.

I will outline the scope of intellectual property law's intergenerational

consequences and provide a couple frameworks for thinking about these consequences

that open up opportunities to realize the benefits of an open culture. But first, I want to

examine our responsibility to future generations in terms of the intellectual commons.

3.3 Source of Responsibility to Establish a Just


Regime of Idea Control:
The present generation, to the extent it has sovereignty over the intellectual

commons of today, creates the commons for future generations. All the content generated

today will eventually fall into the public domain if the limited terms requirement of the

Constitution is interpreted to have any force. All of today's content, together with all that

has come before it is the collective inheritance of future generations. The term extensions

the United States has seen that steadily extended the length of copyright to 70 years past

the death of the author delay the inheritance, possibly skipping whole generations. The
generation of children who grew up with new episodes of a cartoon made by their

parents' generation may never have free access to that content, and neither will their

children. Some of their grandchildren may receive this inheritance and could freely use

this content, rebroadcasting it to their friends or including elements into their own

productions. But what are the odds that a cartoon from 2008 will be cool enough for the

children of the 22nd century? If progress in animation technology proceeds even half as

fast as it has in the last century, our cartoons will be little more than oddities from the

past, given their present state of limited color palettes and low resolution, but those

distant generations may be able to use their newly free access to some elements of today's

cartoons to create new content of value. By the construction of the terms of intellectual

property protection on work produced today, the extent of the commons at any particular

future time is partly determined. By the legislation of terms of copyright and the

interaction with those terms by individual creators, the inheritance is scheduled. It could

be scheduled fairly, but the precedent set by Eldred shows there is potential for great

delay.

3.4 Universalistic versus Relational models


Where could we locate a source for an obligation to provide posterity with a

vibrant intellectual commons? Bruce Edward Auerbach argues that obligations to future

generations are typically derived from two main categories: universalistic and

relationship-based models.39

Both paradigms apply to the commons of ideas and issues related to copyright. On

the individual level, the IP protection that each paradigm prescribes goes against the
39
Auerbach, Bruce Edward. Unto the Thousandth Generation. New York: Peter Lang Publishing, 1995. 60.
policy the opposite framing would suggest. An author, when considering his obligation to

those he has relationships with, would first consider his or her children and may view

intellectual property rights as an important part of their inheritance. A choice of the

strongest and longest-lasting protection possible would provide them with the best

inheritance. On the other hand, authors who base their approach on universalistic

principles may recognize that many may benefit if given more open access to material

before it becomes ancient history. The perspectives are not completely distinct and may

be held in a number of combinations, but as Auerbach argues, there is a tendency to

emphasize one or the other.40

I will now explore how relational and universalistic models interact in creating the

justification for establishing various norms and laws governing commerce in content. The

basic relational model establishes that we have responsibilities to posterity based on our

relationships with them. This is usually paired with a claim that our relationships to

imminent generations are closer than those to distant generations, which is used to argue

that responsibilities follow in being stronger toward those who will immediately follow

us. How would this model of obligations apply to transmission of ideas?

On the individual level, obligations are strongest to those in subsequent

generations who have the closest connection to content creators of the present generation,

which incentivizes strong IP protection. On a broader level, the opposite is true,

presenting a paradox of considering intellectual property with a relational model: the

highest costs are paid by the generations closest to the author when his or her ideas are

freshest and most relevant.

40
Auerbach, 62.
A resource like ideas functions differently in intergenerational allocation than

other resources because content, especially digital content, is infinitely duplicable and the

limitations on the resource are imposed not by natural limits, but by law. While other

resources like fossil fuels face the potential of a diminishing supply with each successive

generation that makes use of the resource, the amount of content in existence will expand

as long as records of existing content are preserved in memory or physical artifacts such

as books or digital storage. Because each idea is not subject to the limitation of being

limited, we can compare content to limited resources, such as property in land or natural

resources, but in each comparison, there is a mismatch that could mean policy based on a

direct comparison like this may need reconsideration.

3.5 Obligations
One model that imposes obligations on those involved is that of explicit contracts.

This is problematic in terms of future generations, not only because of uncertainty over

exactly who future generations may consist of, but mainly because by virtue of not

existing yet, these people cannot consent or decline a contract. People living in the distant

future will have no way to agree to pay us for our content, so we have no right to require

payment of them.

One reason we may not have a strong obligation to provide for distant generations

is, as Martin Golding points out, because of our inability to accurately predict what kind

of social situation they may live in ("Obligations to Future Generations" 70). This

problem does not apply as much to ideas as it does with other resources. It is inevitable

that members of distant future generations will have ideas and beliefs that are radically

different from our own. We can compare the ideas familiar in this generation to those
held a millennium ago and see that a few have held while many fundamental models of

understanding have endured radical shifts. We can make no strong predictions about what

critical shifts may arise in the next millennium. In the case of intellectual property

protection in the United States, the "limited times" requirement of the Constitution, even

though weakened by the Eldred decision, must still literally be limited to some extent,

meaning we can consider separately generations that fall before the term expiration and

after it. I think we can disregard the question of our obligations to provide content for

distant generations to focus instead on our obligations to provide content for near

generations because all the content the current batch of authors and artists are creating

will be available freely to the members of distant generations.41

It may be even more useful to ignore the positive obligations we may have to

future generations and pay attention to negative obligations, specifically the imperative to

do no harm to future generations. Daniel Callahan suggested this approach because it

avoids what he saw as an unnecessary limitation that relational models imposed by

prioritizing the needs of near generations above those of distant ones.42In terms of ideas,

we could consider any limitation on access as a harm to the individuals affected. The cost

of a finished product like a CD or a of a licensing fee that must be paid to incorporate a

copyrighted work into a new creation is as any other cost, a financial harm. Distant

generations (those who will live after the limited term on today's ideas has expired) will

not be subject to the limitations imposed by copyright on this content. The costs will all

This applies only if content is intentionally preserved. If valuable content circulates in digital form among
41

many people, it is unlikely to be lost, but if restrictions on this kind of trading prevent a distributed
solution, the idea may be lost unless its owner is careful to preserve it.
42
Auerbach, 70.
be paid by nearby generations. What harm distant future humans might experience of our

making will not be from limitations on the ideas that this generation copyrighted, but

instead from a cascade of effects arising from restrictions imposed by us on those who

came before them. We could only harm distant descendants by halting progress during

the lives of closer generations. Such a failure could only occur if the costs imposed on

near-future generations by IP protection were high enough that they precluded the

progress that the protection is intended to incentivize. If certain remixes of content are

prohibited, distant future generations will not have the benefit of that material that could

result. We might consider this kind of relative loss as a harm, because it would be a result

of our action.

Many models of intergenerational justice fail to account for the fact that our

actions not only determine the amount of resources available to future generations, but

also determine the size of future populations. For example, if our actions led to a smaller

(and some would say more sustainable) population on the planet, it may not matter as

much if the current generation left smaller reserves of fossil fuel behind for them. Again,

the fact that intellectual resources can be spread around equally to any number of people

without reducing the amount any one person has forces us to reconsider. The quantity of

ideas produced by this generation available to any one person in the distant future is

largely independent of the number of people in that person's generation. Only by a

catastrophe that led to the destruction or loss of content could we truly harm the

intellectual commons of the remote future.

We could consider the loss of knowledge in the fires at the library of Alexandria

as a harm to every generation that followed the blaze. Destroying or losing content is the
only true harm we can do to the intellectual commons of the distant future. Preventing the

creation of new content functions the same. From a standpoint that advocates the basic

intergenerational principle of "do no harm", we are obligated to protect our intellectual

commons and project it into the future. Defining intergenerational obligation in terms of

harm instead of good allows us to avoid the question of whether future generations are

part of our moral community, because regardless of whether someone is in our moral

community or not, "most understandings of justice require that we not cause harm to

strangers.43

3.6 Universalistic models


3.6.1 Argument from Utilitarianism

One universalistic approach is utilitarianism. This model advises that the best

course is the one that provides the most good to the most people, not distinguishing

between imminent and distant generations. When applying their model to future

generations, utilitarians argue "that there is a universal duty…to promote the greatest

happiness...for the greatest number of persons", or the greatest average happiness in a

future population.44 This can be combined with an orientation toward avoiding harm

rather than doing good. Applying such a standard to choosing the level of intellectual

property protection would guide an author to choose minimal protection that imposed the

least cost on the fewest people. Costs are considered harms and should be avoided.

Allowing free access to content that has value lets that value to spread a lot further

through the community than it would if restrictions on transmission were in place.

43
Auerbach, 71.
44
Auerbach, 73.
Allowing others free access to content for the purpose of creating derivative works

removes disincentives to the creation of new value. Of course, it is important to keep in

mind that the author is also a member of the community whose happiness matters, so

where a system under which authors give away their content without imposing costs on

others may feature fewer "harms" than our current intellectual property regime, there

must still be effective incentives to produce content. If nobody could be persuaded to

produce content of value, the other side of the equation--the amount of good present in

the system as opposed to the amount of harm--would prevent such an arrangement from

being a solution utilitarians could be satisfied with. Thus we find again that a balance is

required, just as one is needed between restricting content and ensuring adequate

opportunity for free speech.

A utilitarian model may lead to advising some behavior that appears altruistic

because of uncertain benefits for the content creator who gives his or her content away,

but it does not in any way preclude taking actions that provide good for oneself. A

balance between strategies that provide good to others and to oneself may be necessary,

but a solution that can provide good for the content creator while not requiring that

creator to impose costs on others would be immensely preferable.

3.6.2 Individual Rights-based Approach

A different sort of universalistic approach could emphasize individual rights held

by members of future generations to the inheritance of the full public domain. This may

be useful to apply in cases like Eldred, where a copyright term extension threatens to

delay content reverting to the public domain. If such individuals could be granted

standing despite their non-existence, they may be in a position to challenge such a delay
based on the observation that delays hinder progress by maintaining barriers to using

content freely. Viewing restrictions on content in terms of free speech limitations (that

may be necessary to incentivize content) reveals that extensions to the term of copyright

create new limitations on speech that members of future generations would wish to

challenge. If a court could consider such a claim, the only defense such a limitation could

have is that it was necessary to provide the incentives for content production. To my

knowledge, this argument has not been made, because it would be difficult to find any

data to support the theory that authors and artists would produce more content if given 70

years protection after their deaths than 50. Such a claim would seem to be easily

countered by evidence showing most content has its highest financial value when it is

new, value which declines over time and as many used copies of books circulate.

3.7 Resource Analysis for Future Generations

A weakness of the relational model is revealed by treating ideas and

content as resources owned by those who have free access to them. As we saw in Chapter

Two, this type of resource is nonrivalrous, meaning that we can consider content in the

public domain as resources that no one person or group can fully exhaust the supply of.

How does such a resource map onto the models of intergenerational justice?

The issue of intellectual property is peculiar to consider from a society-level

perspective within the relational model rather than at the individual level. While many

relational approaches emphasize that our strongest obligations are to the generations

closest, because we know the most about what their needs and desires may be, copyright

terms that are a couple generations long like the seventy years after the death of the

author available in the United States today provide the most quantifiable benefits to the
most distant generations while locking down access for the upcoming generations when

these properties are at their most relevant and valuable. Golding argues that focusing on

the needs of distant generations would adversely affect the intervening ones. The result of

such a strategy in the case of a nonrivalrous resource created by humanity as opposed to

mere extraction from nature is that an individual focus on providing for posterity results

in delaying free or open access to content for many in near generations. When restrictive

intellectual property controls are the norm, the incentives for releasing content more

freely are low because individuals must maintain their position in the market against

other creators who take full advantage of intellectual property protection. The result is a

weak intellectual commons. The newest and best content remains locked up until seventy

years after the death of each piece's author.

Examining the content available to each individual abstractly as resources reveals

that the widespread use of copyright protection that lasts a long time causes individuals of

nearby generations to have free access only to a small portion of the collection of recent

ideas and content. The portion of the population that produces copyrighted content has

slightly more of these recent resources than the lay man and can sometimes make money

off of this difference, but a small collection of copyrights is still dwarfed by the sum total

of restricted content. The resource analysis shows that this is a woefully inefficient

distribution of value. Those locked into making a living off licensing their few valuable

ideas to everybody else must prevent their advantage from waning. They attempt to

exchange a nonrivalrous resource (an idea) for a rivalrous one (money). If there is enough

money circulating in licensing fees to pay the incentives for a large number of content

creators, then there is only one obstacle to an efficient system where the legal restrictions
on the free use of ideas are unnecessary. It is a mechanism to distribute that compensation

fairly and adequately to the creators. Establishing the norms that would leave such a

system to posterity may be hard, but the benefits in terms of resources would be

enormous. Instead of many individuals wresting their rewards from the portion of the

population with the capacity to pay for them and leaving the rest without access to the

their content, we could potentially see artists and authors distributing their works openly

in exchange for rewards from a centralized or decentralized payment system. We do not

have to know what such a system would entail to see that its benefits would be enormous.

I will return to possible models in the following chapters.

3.7.1 Comparison to Natural Resources:


Natural resources, unlike human-created content, are rivalrous. Natural resources,

from groundwater to mineral ores to more abstract concepts like clean air, exist in

material form in limited amounts that must be extracted from natural deposits or can only

sustain a certain amount of use or contamination.

The logic of the formation of natural resources is similar to that of intellectual

products because each type of content comes out of a recognizable context that

occasioned its production. This could mean a context of high temperature and

underground pressure necessary to form quality granite for expensive countertops or it

could be a springboard of the thoughts of great philosophers that allows new progress.

Google Scholar, a branch of the Google search engine focused on academic

material has adopted as its motto "Stand on the shoulders of Giants", appropriating a long

tradition of the use of this metaphor referring to the ability to make progress through the

greater perspective afforded by previous observations made by others. Google aims to


make scholarly resources more quickly available to researchers so that through the

connection of many ideas, progress will result for the individuals using the company's

search tool.

The tradition of natural resource protection does have some application to

intellectual property, and it is in a comparison with the public domain. The public domain

as a resource is of a certain size that may be added to or pared down through restrictive

intellectual property protection. We could imagine the state of the intellectual commons

relative to the privately owned and exploited content it parallels. When a large amount of

material is protected and remains restricted, the wealth of the intellectual sphere is

weaker than when much of the content is free.

It is important to remember the state of the commons as one would consider the

consequences of a proposed policy on the environment, the collection of natural

resources that provide everything necessary for life on this planet. The ideas of giants

provide the foundations for a productive intellectual life. Without a vibrant intellectual

commons, individuals and societies would suffer as they would without a healthy

environmental commons.

3.7.2 Consider resource analysis in evaluating obligations.

The resource metaphor allows some important analysis in terms of our obligations

to protect the intellectual commons for future generations. At the individual level, the

resource analysis reveals individuals have access to the most resources under the freest

conditions. Individual content creators must consider how to distribute access to their

own works, should consider how the work's value could be maximized. Under a

relational model, authors and other content creators have obligations to the members of
their moral community, which could be interpreted to mean that creators should not

deprive those people of access to content. Under a utilitarian model, creators have a duty

to not deprive others of their content in order to ensure that few are harmed by inability to

access valued content.

We must also consider relational obligations in the other direction. Those who

have a relationship with a content creator based on enjoying his or her creations have an

obligation to that creator to provide them with resources in return. This important

obligation is enforced under the current system by allowing punishment of those who do

not provide negotiated compensation, but there may be other ways of ensuring this duty

is done that do not require that so many people go without access. I will address how to

channel voluntary contributions to responsible artists in the final chapter.

Freedom of access to existing content provides the highest benefit under a

utilitarian resource analysis, so a policy governing ideas should aim for this goal: to do no

harm to the commons by restricting access to content. At the social level, norms of free

access should be encouraged, and at the individual level, content creators should provide

as free access to their content as is possible, while attempting also to ensure their own

needs are met.

3.8 The Free Speech Climate in Future Generations

Considering idea regulation through a free speech lens means treating barriers to

free expression as censored speech. When the barriers are imposed by the copyright terms

we create, and these barriers last generations, we should be concerned about the effect on

the opportunities our posterity have for free speech. The free speech climate has

institutional strength and inertia, so our efforts to establish a context where free speech is
the norm may be far-reaching. Do we then have a responsibility to future generations to

establish a healthy free speech regime? Considering restrictions on what content may be

rebroadcast as a limitation on speech and as a harm means that we have an obligation to

reduce this harm.

Consider the metaphor of culture as a language, made up of individual ideas

strung together through conventions of use. Those who can master a language are able to

inject novel combinations of words into conversation, but the meaning of these new

expression depends on the meaning it remixes. If we think of all content as words of a

language, we see that those who cannot access and command a full vocabulary of content

are stunted in their growth and communicative potential. Limits on the accessibility of the

words in a language prevent its speakers from conversing with each other about whatever

words are unknown. They lose the ability to stretch the language further to cover more

concepts and frames.

The forces deciding how today's content is handled will build the language of the

next generation. The institutional structure of intellectual property and the decisions of

individual content-creators who use this system will create the culture and context of the

next generation's ideas. We have the responsibility to establish this system justly.

We declare that the freedom of speech is an inalienable right of human beings, so

we have a responsibility to not curtail this right. This is a negative obligation because it

defines abrogation of the right as a harm. American courts have accepted limited contexts

in which free speech rights are superceded by a pressing public interest that stretches far

enough to cover obscenity, political contributions, and libel, to varying degrees. The goal

of progress may in fact be as critical to America as fundamental society-enabling goals


like the preservation of the peace, thus justifying the Constitutional grant of authority to

Congress to create limitations on speech like copyrights and patents.

Neil W. Netanel points out the balancing act between free speech and limitation of

that speech to incentivize new content as "Copyright's Paradox". Netanel is concerned

that most people fail to recognize this balance exists in their tendency to treat copyrighted

material as property, but consideration of any copyright as a violation of a right of

freedom of speech would push this even further, forcing us to realize that imposing

limitations on others speech for an incentive purpose is still imposing a limitation on

speech. To do such a thing requires a high standard of justification, and this should be

remembered in legislative and individual contexts. Minimizing intrusion is necessary to

justify the limitations on free speech entailed by a system of intellectual property.

We can view the obligation to not curtail our posterity's freedom of speech in the

language of today's culture from the other direction, as a positive obligation to create a

vibrant free speech climate. This is a valid move because it invokes the responsibility to

build a powerful language of shared content, which is a rephrasing of the Constitution's

insistence that the goal here is progress. Progress means more and better ideas in

evolving succession as time moves forward. If we are to imagine an endpoint to this

process, it is an active commons of ideas in conversation with each other, accessible to

all.

The final question is how to create such a commons, especially as individuals

acting from within the present-day intellectual property regime. This chapter presented a

case for creating and protecting a vibrant intellectual commons for our posterity. The next
presents individuals' opportunities to move this way in their decisions about their own

content.
Chapter 4: New Models and Individual Change
Changing cultural perceptions to restore the balance between incentivizing

content creation will require working examples showcasing the benefits of freer access to

a wide range of content. People need to see how value is produced and how creators gain

compensation for their work before they are willing to risk their effort by allowing free

access when others in the marketplace are not. Our goal for future generations is the

establishment of a healthy commons of content, but the present weakness of the

commons could discourage contribution. Norms of strict control in the traditional media

have given proprietary models great momentum in the public consciousness, and the

perception of tight control as default will be difficult to overcome. To compound these

problems, the biggest producers of content constantly lobby for expansion of intellectual

property rights, throwing millions of dollars into the effort every year. Against these odds,

I aim to convince individuals to put the products of their efforts into the commons, an

option which may allow the public access without guaranteeing any financial returns.

Individuals will only make such a decision if they come to recognize the value of a

content commons as well as their responsibility to partake in its creation. In this chapter, I

aim to demonstrate both these points, while offering potential methods of opening

content to the commons. Both the recognition of open content’s value and the recognition

of individual responsibility over its freedom come from a change from one metaphor for

ideas to another. “Ideas are Property” and its underpinnings lead creators to protect their

content from the public. When we move to a different metaphor, we realize the public’s

freedom to experience and interact with content is the true source of progress in the arts

and sciences. These realizations begin with understanding the value of content open to

the commons.
4.1 The Value of Free Culture for Individuals
As I mentioned in Chapter 2, determining value is a matter of measurement

relative to a particular judge and context. The value of Moby Dick to a reader is

impossible to describe fully, even if you only consider the perspective of one person who

read it. We want to calculate the value of all pieces of content to all their audience, and

this value is more than their sum, because shared content makes culture possible.

Lawrence Lessig identifies the content people “remix” as a source of community

and learning, meaning that groups of humans interact and learn through experiencing,

manipulating, and sharing cultural content (Remix 76-77). These are the primary benefit

categories of remixed media. The democratization of new media technologies allows

means greater numbers of people are capable of interacting with audio, video, and web

content as a normal part of their cultural activity. Just as when authors quote passages in

text, new artists “quote” content in many forms, and incorporate it into new creations. To

the law this means copying, requiring permission, but in the new technology-aware

paradigm, interacting with existing content means copying it. The law requires

permission for this activity, but remixed content comes with the frequency and

importance of a quotation in an essay. Quotes are necessary all the time, and they are

critical to the success of the new work. Before a community can critique a piece, it must

also be distributed around. In the Internet-enabled world, this means making copies at

every step. Author Cory Doctorow worries copyright lawyers fail to understand the

significance of copying on the Internet:

Copyright law valorizes copying as a rare and noteworthy event. On the


Internet, copying is automatic, massive, instantaneous, free, and constant.
Clip a Dilbert cartoon and stick it on your office door and you're not
violating copyright. Take a picture of your office door and put it on your
homepage so that the same co-workers can see it, and you've violated
copyright law, and since copyright law treats copying as such a rarefied
activity, it assesses penalties that run to the hundreds of thousands of
dollars for each act of infringement. There's a word for all the stuff we do
with creative works — all the conversing, retelling, singing, acting out,
drawing, and thinking: we call it culture.”45

Doctorow equates the sharing of content with activities essential to culture. He argues for

a paradigm shift, a recognition of the true dynamics of sharing content in the context of

everyday life in the Information Age. Sharing content is conversing, and surveys confirm

that a great deal of the young generation engages regularly in this kind of conversation.

However, rarely compared to the volume of this activity, the state makes an example of

one young conversant and awards thousands in statutory damages to lawyers representing

rights-holders over the content of these conversations. The courts have not achieved this

recognition, despite its particular importance in the development of the law. Lessig offers

a pointed critique of the law community's failure to recognize most culture-sharing

activities on the Internet as the sort of quoting that is unquestionably allowed for works

of text. He wonders why judges so reliant on remixing the text of previous decisions to

extend the law to meet changing circumstances, would not recognize their own pattern of

activity in online remixes. (Lessig, Remix, 82) The law community relies on a common

history of intermixing texts to articulate principles of justice, and culture as a whole relies

on a similar system of content exchange. The material in the cultural consciousness is the

dialect of the zeitgeist, the words with which people interact with their contemporaries.

Quoting it is part of the natural process of dialogue with culture through which more

culture is made.

The question of the value of a cultural commons to a population or an individual

comes down to this. What is the value of having a robust, full, and expressive language?

It would be inhuman to live without it. The familiar freedom we assume to manipulate

Doctorow, Cory. “Why I Copyfight.” Locus Magazine. November 2008.


45

<http://www.locusmag.com/Features/2008/11/cory-doctorow-why-i-copyfight.html>
and respond to text is taken for granted,46 and people are slow to apply this understanding

to new media even as their children are growing up speaking new media like a language.

4.2 Access
To realize the benefits of a particular piece of content, the public must be able to

access it in two ways, and individual content owners can ensure that they are. It must be

available to individuals to read or otherwise experience on a read-only basis. This serves

to add a piece of content to the cultural lexicon, so it may spread. The benefits of

widespread recognition enhance an artist's reputation while the public can enjoy the

content. But once good content is circulating in culture as read-only, it will inevitably be

reshared and remixed in what Lessig calls read-write culture,, as individuals incorporate

the content into their own thoughts. The ability to incorporate an idea into a new

invention, format, or message allows culture to iterate and evolve. Lessig sees an

ecosystem of ideas where “read-only” cultural artifacts (original releases) and “read-

write” artifacts exist together to form a robust hybrid culture (Lessig, Remix 34).

However, the law allows rights-holders to censor some of this expression, limiting an

idea's spread through culture. Because technology and the law have converged, giving

content owners rights over a vast range of new “copying”,47 the owner's decision about

how to treat her content is more important than ever. Where this intervention occurs, it is

possible that a creator's opportunity to make a financial return on her work is protected,

46
Lessig, Lawrence. Remix. New York: Penguin Books, 2008. 82.
47
There are two trends to track here. The first is the massive expansion in communicative capabilities
available to the individual through networked technology. This allows one person to access and manipulate
ideas in ways never possible before the advent of this technology. When an investment in a printing press
was required to reproduce even text, few people's interaction with ideas interfaced with the law. Reading a
book and lending it to your friend to read did not constitute copying. The second trend to track is the
expansion of legal control over the actions enabled by this new technology. Every interaction (both read-
only and read-write) with a digital file requires making a copy—from hard disk to random access memory
at least—and copying is a realm of action that may be regulated by intellectual property law. See Lessig,
Remix, 99-103.
but it is certain that barriers are introduced that prevent amateur derivative works from

entering into the same channels of culture that the professional read-only media uses. The

“conversation” around locked-down content may only occur in back alleys of the

Internet; when it spills into prominence on YouTube, copyright owners have the option of

filing takedown notices. YouTube must quickly respond by removing potentially

offending material in order to maintain a neutral posture in court.48 Individuals who want

people to be able to interact with their content must separate it from the proprietary

offerings in order to take the conversation out of legal limbo. An author may guarantee

this by making it known to the audience that their right to interact with the content is

secure.

An individual who has just finished the production of a piece of content has some

important, but often ignored, choices to consider, upon which the ability of the public to

legally enjoy his cultural token depends. United States law grants an individual a great

deal of protection by default upon the authorship of new content. Most digital content is

protected under a copyright automatically, complete with the legal requirement that

permission be sought for use.49 The default option often escapes questioning. Many

content creators do not know they even have an important choice to make, the

consequence of which is the kind of access the public of present and future generations

will have to the content. The decision here determines the mediation of access to content,

and the default option builds strong initial barriers. Permission for copying or remixing

must be obtained.

For a relatively small portion of content released under full protection,

commercial exploitation of the restrictions produces a significant revenue stream for the
48
Lessig, Remix, 2.
49
Lessig, Remix, 254-256.
author or artist. For most content locked down under copyright-by-default, this will not

be a profitable economic gamble. Economic value concentrates at the top end of the ideas

market. A small portion of would-be authors can command an advance from a publisher

to enable them to write a book. Publishers can only afford to gamble on high quality titles

that promise popularity, so only a small portion of the potential content that could exist in

book form is released. The publishers’ recommendations, evinced by the titles they

choose to print are like the recommendation tools available to separate the fruit from the

chaff on the Internet. Amazon.com can guess items I might like based on the purchase

histories of other users who had bought what I had. The selection of books available on

Amazon is just a previous step in this filtering process. It helps me sort out content I

would be interested in from the rest. A publisher must focus its efforts on the best content

submissions available to it because it has a financial incentive not to publish content that

would not sell on a large scale. The cost this economic gambling game imposes on the

market is the limited range of content. Fewer ideas are available to fewer people, because

when physical objects must be produced for a market, only those who can afford them

have access. In order to sell access for a profit on a few intellectual properties, this

system blocks free access to a larger quantity of less “marketable” content in order to

establish a commodity-based compensation system. Many authors who seek publication

see this arrangement as typical and do not seek content-distribution models that do not

contain such a bottleneck.

But for those authors who recognize that their content may be valuable to

individuals to have their own conversations with, alternatives exist that make it easier to

offer content and guarantee their audience the freedom to react in kind, all while lowering

the costs of access to an Internet connection. To embrace these alternatives, authors must

recognize their objectives and how those objectives relate to the public conversation
about their content. The objectives should include money if the content creator is

attempting to achieve commercial gain, and permission-based revenue streams may be

the best option to enable the content to be produced at all. But for content that might exist

anyway without this protection, the decision over its protection should be carefully

considered. The traditional arrangement creates the opportunity for certain types of

commercial exploitation, but it adversely affects the cultural conversation over the
content by introducing the barriers of required permission. Most amateur, student, or

hobbyist content is not dependent on financial support to come into existence. This

content may be marketable in the traditional sense, but artists should recognize that they

could achieve the reputational benefits and even some profits associated with creating

good content without protecting it to the full extent available under the law.

4.3 Genre
The concept of a genre, often ignored as a trivial classification system for content,

could have more powerful application to our understanding of how we relate to ideas. A

genre is primarily defined by the form its content fills out. There is a distinction to be

made between content and form, but we can treat the form as a kind of content. As

Bakhtin says, “form and content in discourse are one.”50 Amy Devitt argues that a

container metaphor “makes genre a normalizing and static concept, a set of forms that

constrain the writer” and that a new conceptualization of genre is needed to counter this

tendency and recognize the dynamic nature of genre as it functions for writers.51 This

may not be necessary. Here I will attempt to extend the concept of genre to recognize its

potential to provide opportunities to content-creators rather than constrain those creators

into extant patterns. I believe a container metaphor is appropriate for genre with a key

caveat, that we recognize a genre's border may vary relative to the perspective of

individual observers. Thus, one genre may have a number of different definitions that

collect different content within.

The basic container metaphor for genre claims that all the artifacts within the

genre share elements from the same collection of content. In the most recognizable

50
Devitt, Amy J. “Generalizing about Genre” College Composition and Communication, Vol.44, No. 4,
Dec. 1993. 573.
51
Devitt, 574.
example of a genre, a style of fiction writing like science fiction, the shared content

includes plot elements, characters (spaceship captains and androids), themes (machines

taking over humanity), and patterns of style (the speculative science of “hard sci-fi” for

example).

Science fiction is a notable example of the sort that first comes to mind when we

think of a genre. How do humans interact with a genre like this? Readers experience this

content from one angle through buying and reading books. The cost of the books and

library late fees form the main cost of this kind of access. The other essential way in

which humans interact with genre content is as writers. To participate in a classic genre

such as science fiction as a writer, education and practice are required, but these

constitute the primary barriers to entry. Even amateur authors can participate in the genre,

and their content contributes some value to the group as it may be assessed by readers.

Both types of access to this sort of genre are mostly free. I believe this is the “natural”

shape of a genre. Its boundaries are not clear. They depend on the judgment of an

individual or authority to determine. Some pieces may spill over into other genres. This is

the natural result of the freedom for writers to participate in these genres. A writer's

participation in a genre is a prime example of how content in existence helps enable

progress in the way that the Constitution's writers imagined. An existing set of familiar

characters, plots, and rules allow a writer to create new content more easily by

incorporating existing content into new arrangements. New science fiction works benefit

from an audience's understanding of the previous content. They extend the questions

posed by their predecessors, adding value to the conversation around the familiar

elements of science fiction.

I want to broaden our understanding of “genre” to apply it to content collections

of all sizes, but especially to consider individual collections. An individual author who
writes a series of books that follow the same characters through a progression of

challenges essentially creates a microgenre. All the works in the series include a precise

set of shared content even more closely related than the content that defines a large genre

like science fiction.

Some genres are large and have many authors and readers, like science fiction, but

some are specialized, such as the “Marvel Universe” where intellectual property

protection allows the participation in content-creation to be controlled by something other

than individuals' desire to participate in the genre, in this case a corporation. Considering

a specific collection of content like the Marvel Universe a genre in its own right instead

as simply a subgenre of superhero comics may seem counterintuitive, but I argue that the

essential features of a genre are intact at this level as well. The comparison between a

“natural” genre such as science fiction and a tightly controlled genre like the Marvel

Universe could reveal how a genre's control regime affects how progress within the genre

occurs. Such a comparison could guide individuals' decisions over the type of control

they adopt over the genres of content they create.

There are some important questions to answer about the “shape” of a genre. First,

what defines the content that is inside a genre from the material not included? For a genre

of fiction, the material to consider would include particular pieces of content like

characters, plot elements, themes. The border of a genre divides some stories from other

ones using a specific rule. The rule and the judge who decides the rule vary. We must ask

who creates the genre's content and which content creators do not. Who and what control

the membership of this group? Another important issue of access is to determine who can

experience the genre's content as a reader and if there are rules or transactions that govern

this access. Who controls or mediates this relationship?


Each question of shape is associated with a scheme of control that regulates who

has access to the content and what content they access. For some genres, control is tight,

and for others some kinds of access are free. This choice affects how others will be able

to access the content both for reading and in terms of participation in the creation of

derivative works. Individual authors must make this decision for their genres.

Sometimes content is tightly controlled, and one of the results is limited access,

both to readers and writers. This is the case for the genre of the Marvel Universe. Such

limitations build barriers to progress, as I have described it. We must seek to justify any

control exercised over content that blocks progress. Intellectual property protects some

instances of progress by introducing barriers to others, but the tight controls offered by

the intellectual property regime are not always necessary in full force to incentivize the

production of a genre. If an author uses tight control, future contributions to the genre

may be blocked.

One path to a potential justification of the limitations on access to content (to

writers) claims that limiting access to the genre prevents dilution of the genre's value

because the content owners reserve the right to select the writers who may participate in

order to ensure that the genre's content is all good. Under the intellectual property regime,

when a genre is owned, this is allowed. But consider that individuals may define a

genre’s contents however they like, so even the Marvel Universe genre may contain

works by non-canon authors. An enormous quantity of fan fiction that uses the same

characters but may break some of the rules the owners of Marvel want to maintain for

their official universe. The official conception of the genre and another individual’s

genre, defined across a different dividing line, can coexist together. With the content-

tracking tools available on the Internet and the fact that the official content is all
numbered and organized, there would be virtually no difficulty in distinguishing between

the two conceptions of the Marvel Universe genre.

Considering the collection of one author’s work as a genre, there may be the

possibility to redefine this genre to include works by other writers, especially when those

others use the original author’s ideas as source material. Individuals who are aware that

their ideas will be remixed should recognize that they can define the genres their work

fits in, and that there will be no long-term confusion over which work is part of one

author’s official novel series and which work is fan fiction written by another. If the fan

fiction that arises from one author’s genre is good and fits the purpose of the genre, the

original author may even choose to accept it into his canon, though there is no inherent

contradiction when separate definitions of the genre exist side-by-side. Individuals

willing to allow access to their works, so that they move through culture naturally, could

recognize that interaction with the genres the create may be an attractive option for

remix. They should leave that option open. The following discussion addresses liberal

licensing, in individual-based strategy to allow access that would be restricted under a

typical construction of intellectual property rights.

4.4 Liberal Licensing


4.4.1 Licensing options

An easy method for guaranteeing some types of free access to content that you

create is to associate a permissive license agreement with the content, so that remix uses

that the artist recognizes as non-detrimental are permitted automatically. If your content

is valuable to culture, it will be talked about, and this conversation turned digital means

that copying and the production of derivative works will take place in the eyes of the law.

Much of the activity in each realm is not detrimental to the content's author or his

reputation.
Creative Commons, a nonprofit organization dedicated to providing content

creators opportunities to share their content, maintains a series of licenses that offer

different configurations of rights-protection to suit the needs of a wide range of authors

and artists. Where these licenses allow derivative works, they typically stipulate that the

license travels with the content, so that derivative works must provide people the same

access originally offered.

For example, the Attribution-Noncommercial-Share Alike 3.0 (abbreviated “by-

nc-sa”) license offers a specific group of users, noncommercial ones, access to content for

sharing in a read-only mode as well as in remix mode in return for a promise that

derivative content will carry the same or similar license.52 Users who seek to use this

content for commercial purposes may seek permission, but when artists are not concerned

about others’ commercial use, other Creative Commons License does not contain the

limiting stipulation.53 The content under these licenses may be collectively shared and

mixed together in most cases without the need to ask permission. The public has some

right to reach into this pool like it may with the public domain. Reaching back into the

collection of previously created knowledge to combine it with fresh observations of their

own is the process by which humans expand their understanding. Minimally restrictive

licensing practices provide opportunities for learning and efficiency through the growth

of a pool of open content. Stephen Weber, writing about open source software, which is

one of the best examples of functioning permissive licenses, argues that licensing

schemes create communities. These schemes are dependent on the intellectual property

52
The Attribution-Noncommercial-Share Alike 3.0 license is the license under which this text is distributed.
It is available here: http://creativecommons.org/licenses/by-nc-sa/3.0/
53
The Creative Commons licenses require attribution of the source when shared or remixed. Individual
Licensors can choose whether derivative works or noncommercial uses shall be allowed. Licenses range
from merely requiring attribution to the “free advertising” license, which only allows attributed
redistribution with no changes made. See http://creativecommons.org/about/license/
rights that grant developers the right to require that derivative products to remain under

the license, and therefore within the community.54 The community that builds software

under the Gnu Public License (GPL) works with a specific set of content, improving it,

and expanding its value, while offering the products for free user download. While

creating this public resource collection, this community has also functioned as a social

and creative gateway.

Users of the pool of content created by a nonrestrictive license have some legal

privileges to use all of that content for sharing and remixing (the natural things humans

do with content) without any effort spent on obtaining permission or negotiating a

specific license. The whole collection of open content is available to them (legally and

digitally at their fingertips) to share or remix in their own projects.

4.4.2 A Critical Mass

In a nuclear fission weapon, a chain reaction

“'goes critical' when [it] becomes self-sustaining; for an atomic pile, or an


atomic bomb, there is some minimum amount of fissionable material that
has to be compacted together to keep the reaction from petering out...The
principle of critical mass is so simple that is no wonder that it shows up in
epidemiology, fashion, survival and extinction of species, language
systems, racial integration, jaywalking, panic behavior, and political
movements”55

Critical mass is an issue in the competition between open and closed culture. A

consequence of every addition to the pool of usable content is that the pool gets bigger

and better. It becomes more a more valuable cultural forum. The incentives to using the

free system increase with each contribution, and an individual making the decision over

his intellectual property protection may feel the balance tilted by the expanding wealth of

54
Weber, Stephen. The Success of Open Source. Cambridge: Harvard University Press, 2004. 84.

The words of Thomas Schelling, cited in Marwell, Gerald and Oliver, Pamela. The Critical Mass in
55

Collective Action: A Micro-social Theory. New York: Cambridge University, 1993. 1.


available content. If the pool grows large enough to affect the balance on many amateurs

and mainstream professionals, a critical mass could develop where the easing potential of

participation in this system enables much more conversation around open content than

the incentives of copyright motivate production of locked down content. An acceleration

of the accumulation of open content would cooperate with expanding capabilities of

media-editing technology to democratize access to participation in the new media in

culture.

The change I propose is political and societal rather than individual, yet I am

proposing an individual-level treatment, the voluntary release of control over content by

singular content producers when others in society will not. Marwell and Oliver, in

studying group dynamics and the organization of collective action, make the claim that

rather than individuals, small subgroups of highly motivated actors form a “critical mass”

that spurs change, while individuals are unable to do it alone.56 Once a “critical mass” of

free culture exists (meaning when there is a meaningful portion of appealing content

available for legal remix), the incentives to take part in this system explode upward.

Remember, the main incentive to contribute is the access to content in the first place.

The movement may not take off until a critical mass chooses to distribute their

content as free culture to experience and remix, but because an individual's participation

in a community under a nonrestrictive license steadily builds incentives and awareness, I

believe individual action has the potential to create the critical mass group necessary in

this case. Because individuals who participate receive some benefits before the critical

mass is built, and those who do not participate miss out on those benefits, the campaign

Marwell, Gerald and Oliver, Pamela. The Critical Mass in Collective Action: A Micro-social Theory. New
56

York: Cambridge University, 1993. 2-13.


to create a vibrant free culture may not suffer from the “free-rider problem” that plagues

the struggle to create typical public goods like parks.

4.4.3 Becoming Competitive

If the supporters of open content succeed in fostering such a critical mass, it will

place the open content into competition for public attention in read-only culture. Amateur

content producers (where they do not remix proprietary content without permission) may

gravitate toward the open content camp, where easy access to existing content makes

low-cost production possible, but entrenched media interests dependent on present

business models will resist, pressing their closed formats as the only option.57 Renaldo

Lemos, a law professor from Brazil describes this competition:

Society is the biggest competitor for Hollywood, for the music industry, for the

publishing industry. So you have this new competitor that is everyone else, so the law has

been consistently changed in the past say 12 years in order to protect certain very specific

interests especially for the North American cultural industry in order to prevent society

from becoming the producer of culture in itself, and for itself.58

The publishing companies that depend on selling culture to the public would

suffer if the public started getting more of its content from free sources, so they try to

maintain the present market organization. Where free culture arises, it will be fought.

There is a further difficulty to competing with licenses that require derivative works to be

similarly licensed because licenses like the Creative Commons suite or the General

Public License (GPL) that Richard Stallman and the Free Software Foundation advocates.

57
See if you can find a reference to some activity like this. You could say claims that file-sharing
technologies are illegal because of their capability to trade closed content treat their model as the only
option.

Good Copy, Bad Copy. Dir. Andreas Johnson, Ralf Christensen and Henrik Moltke. 2007.
58

<http://www.goodcopybadcopy.net>.
They do not allow proprietary content to mix with GPL content which limits the

flexibility. Proprietary software projects cannot incorporate GPL-licensed code, and vice

versa.59 This is a structural problem of competition with proprietary culture. It could be

overcome by having a very strong commons of content under GPL or other "free"

licenses. The problem that separates the two pools of content is not the uncooperative

nature of open content schemes but that of the closed content market that claims

exclusive rights over conversations about their ideas. They must play by the rules they

choose, and must negotiate permission for use of content released under open licenses

just as they would for closed content. It is a shame that so much good content cannot

legally be remixed, but recognition of this as a problem is the first step toward a

widespread freedom to remix,. Every individual creator who puts his work into the public

with an understanding that sharing and remix are natural and free adds to the legal pool of

content to have a natural relationship with and raises awareness of the possibilities of a

free culture. Though legal change will be necessary in order to bring this “massive and

massively inefficient, system of regulation... into the twenty-first century,”60 we must also

change how we think about how our ideas should circulate with others. To achieve the

legal and widespread individual change that is necessary to establish a vibrant cultural

commons, working models of open culture should be publicized and supported.

Importantly, believers should be participants.

In this competition, audiences will choose the best content available to them for

read-only consumption, discovered through their individual networks of links and

recommendation tools.61 They will consume both open and closed content. Where they

can experience content socially, they will want to talk about it with their friends, and
59
Weber, 52.
60
Lessig, Remix. 253.
where they have the capability to remix it, they may choose to do so. This social value of

content is an important part of its appeal, and the legal restrictions on having this kind of

conversation around closed content may dilute its cultural strength. Examples are made

of a few individuals who share or remix closed content with the intent to scare others

away from this kind of activity, but the fact that it occurs anyway in such high volume

shows that people have a strong desire to experience cultural content through these

technologies and have a disdain for legal or economic barriers that prevent this access to

the culture they experience on TV, the radio, the Internet, and with their friends. Open-

licensed content offers this access for free, at no legal risk. Modern technology offers the

tools to remix this expression, and reshape it for the cost of a computer and an Internet

connection. But it only works if the content

Will the merits of open content focused around stand up to the enormous budgets

of mainstream media, their production studios, and their entrenched channels of mass

delivery in order to assert themselves as a viable alternative? Will the legal right to share

and remix attract content and monetary compensation against these odds? There is the

possibility to bypass this competition if the law, through the legislature or the courts,

recognizes an expansive free use right (beyond fair use) for amateurs to copy and remix

with the tools now available, so that the everyday noncommercial creative output of our

social culture once again lies outside the realm of censorship by intellectual property

owners. But this possibility also depends on the opinion of the public, that of individuals.

Their decision in that political battle carries weight as it does in this one, for individuals’

placement of their content into the open pool or the other is a political act in this

competition. It directly affects the possibilities for present and future content creators to

Lessig’s three cooperating layers (content, links and recommendations, tools to analyze content's
61

usefulness) connect users with value. See Remix, 61.


gain a leg up on making a specific artistic or technical vision into reality. Individual

commitments of open content offer a path to a healthy commons of content that is

available to individuals right now, without requiring enabling legislation or a cooperative

court, and the fate of this commons depends on individual recognition of its importance.

Our ability to learn and socialize to the fullest extent allowed by our technology depends

on it.62

4.4.4 Language and Literacy Metaphor

Recall the comparison between cultural content and the words of a language. The

open and closed pools of content function as different segments of a cultural language.

The ability of the people to gain literacy in this language depends on their capacity to

“decode and encode” cultural content, to “analyze, interpret, and explain” it, and to

expand their understanding to new expression.63 Much of this activity requires permission

relative to content in the proprietary pool. If we want our children to be literate in culture,

to have the critical skill to disassemble and rebuild its components, we must provide them

a sandbox of valuable ideas to assemble. A commons of open content offers this potential

while closed content does not. Every idea in the form of a film clip that an individual

contributes to a pool of open content is one that the neighbors’ children could teach

themselves to become film composers with. They could potentially become literate in the

tools and content of the open world, but applying their creativity to closed content is

prohibited, thus they cannot become literate in this content. Presently, most of the content

that could be the fodder for their remix creativity is locked down, but every person who

62
Recall that Lessig argued community and education were the primary benefits of remix. Remix 76-77.
63
These are the key competencies in Morris and Tchudi’s definition of modern literacy. See Morris, Paul J
II. and Tchudi, Stephen. The New Literacy: Moving Beyond the 3Rs. San Francisco: Jossey-Bass. 1996. 12-
13.
recognizes the possibilities embedded in these children by opening his content to them

takes another step in building them a sandbox that can meet their potential.

4.5 Open Source Software


Now I turn my attention to examples of open content’s present-day success. One

of the most notable of these examples is the open source software movement. A sector of

the software market based on principles of open access and voluntary collaboration has

yielded some impressive large-scale successes. As Stephen Weber explains in his

thorough history of the early movement, The Success of Open Source,

"Collaborative open source software projects such as Linux and Apache


have demonstrated that a large and complex system of software code can
be built, maintained, developed, and extended in a non-proprietary setting
in which many developers work in a highly parallel, relatively
unstructured way"64

Linux is a collection of complete operating systems for personal computers created by a

semi-organized network of programmers. There are different “flavors” of Linux that

emphasize varying user requirements for interacting with a computer and a variety of

developer preferences. All of these flavors are based on a common “kernel”, originally

developed by Linus Torvalds. Linux runs on a small percentage of PCs, and has a

reputation for stability and extensibility as it is famous for its geeky following and

somewhat more technical requirements of a user. It is one option for operating system

available to users, who often choose it over the dominant product (Microsoft Windows)

because of its minimal cost. Despite the difficulties in organization, there are great

advantages when a public good is successfully created and maintained. New capabilities

are possible. Large projects yield duplicable solutions that may be applied to many

individuals' installations. The open-source Apache HTTP server project runs on millions

64
Weber, 2.
of servers worldwide, extended and customized to meet the specific needs of millions of

individuals and businesses. This community depends on the continued support for the

software, so that bugs can be resolved and new capabilities achieved. Apache is another

large-scale open-source project that has gained even greater success. Apache is a robust

Web server application installed on over 70% of computers hosting web pages as of 2005,

one of the best cases of market penetration so far for .65 It is “free as in freedom, not free

as in beer” as Richard Stallman would say, meaning that the company who supports its

community-based development still takes money for copies even though it stipulates that

the source code is free for anyone to modify. The result of this is that thousands of

free66extensions for Apache exist that give server administrators the capabilities to

implement a wide variety of modern applications on web sites.

According to the story conventional IP tells about the necessity of the incentive

that protection provides, "open source software really should not exist" At best, tinkering

with code could be a sort of hobby, but not a mainstream phenomenon. The fact that

successful large products have emerged from this alternative process shows that the

specific type of incentive provided by intellectual property protection is not the only

possible incentive for this kind of progress.67 The essential barrier is spontaneous

organization, because "people do not easily work together in large groups toward a joint

65
Deek, Fadi P., McHugh, James A. Open Source. Cambridge University Press, 2008.
66
Some modules are “free” like Apache itself—open source, but sold by the developers. Some modules are
listed on http://modules.apache.org/ Some businesses sell modules and support to enterprise customers.
Martin Fink notes that companies “start with this open source web server technology and adds enterprise
class capabilities needed by large corporations.” He notes one particular company, Covalent, that packages
their proprietary enhancements with the open source server community (that provides assurance about
quality on one side) to sell and maintain the servers for corporations. The result is a reliable server,
customized to a large-scale purpose, as well as a business opportunity for the company that can connect the
open source community with the business customer. See Fink, Martin. The Business and Economics of
Open Source. New York: Prentice Hall, 2002. 181-182.
67
Weber, 5.
goal"68 But open source projects have succeeded in attracting a wide range of contributors

and developing some high-quality end-products, which are often accessible for free, like

the Firefox web browser. The defense of the ideals and practice of free culture, as

demonstrated by the "the open source phenomenon” is to Weber, “the first and certainly

one of the most prominent indigenous political statements of the digital world"69 Offering

open source as an alternative to proprietary software is a political act in the competition

that both provides a public good in the form of useful software, but also is a working

demonstration of the collaborative possibilities when creators are free to work with the

best content that others have produced. What drives the individual decision to participate?

The individual decision about whether or not to participate in open source development

may be fundamentally economic. As Weber says, "At the center of the process are

individuals who engage in some kind of cost-benefit analyses according to some kind of

utility function"70 The benefit side of this analysis include the utility provided by the

finished software product, any compensation provided by the project, the satisfaction of

providing value to others, and the reputational gains derived from participation. The costs

are measured in time and effort. But this cannot be the entire picture. Weber continues,

identifying a separate realm of social benefits:

"Even if someone takes on a task primarily for the sake of her individual
learning, she gains additional satisfaction if the task contributes to
something more than her own human capital," ...There is a significant
social motivation to share one's creative products with others. The
tendency to broadcast our creative works may be a product of the
passionate connection between the author and the creation.” 71

68
Weber, 8.
69
Weber, 7.
70
Weber, 13.
71
Weber, 74.
This perspective focuses on egotistical rewards, but through a contribution of work to an

open source project, many users may benefit, so it is possible altruistic incitements play

some role. As I will demonstrate later in this chapter, an individual's reward in economic

and social spheres are linked through the content. A programmer's reputation for

developing quality code affects his or her ability to gain monetary rewards or funding for

future projects.

Steven Weber's most ambitious argument is that the model of property that forms

the basis of the open source movement ("property in open source is configured around

the right to distribute, not the right to exclude") can be extended to other "knowledge

domains"72 The ability of content creators in other domains to adapt these organizational

techniques to create value depends partly on their ability to pay the bills while

contributing their time and effort. Having content creators who volunteer their spare time

is great, and such contributions have been critical to advancements in the Apache project

and many other open source endeavors, a mechanism that channels compensation from

those who receive the benefits to those who do the work. In the absence of a collectively

organized compensation scheme, we should look for working models that individuals and

organizations have implemented to achieve this flow. Open Source software provides

some examples for paying contributors who want to invest time and effort to projects

beyond the hobby level. Richard Stallman, founder of the Free Software Foundation, felt

selling copies of software was the best way to gather money:

"Since free refers to freedom, not to price, there is no contradiction between

selling copies and free software. In fact the freedom to sell copies is crucial... selling

them is an important way to raise funds for free software development."73


72
Weber, 16-17.
73
Weber, 47-48.
A potential customer could compile open source software from the source

himself, but paying for a copy of software does not feel like an unfair arrangement to

many people. Value is exchanged for value. Other open source software is distributed as

freeware, dependent on voluntary donations from the public. Open source software

produces fewer full-time salaries than its proprietary relative, and more of open source's

contributors do not rely on income generated from this content, but it is still important

that compensation flows to creators in this area, or we have not established a system that

would live up to the Founders' goal for progress.

Changes in the technology and the dynamics of selling copies of software have

occurred. In the days before widespread access to bandwidth on the Internet, software

was distributed primarily on disks or tapes. Free software distributed on disks or tapes

was free to copy, but not on a scale like that enabled by the Internet. The possibility to

distribute free software to so many from a single source increases the relative availability

of free sources of software compared to purchasing opportunities. Under these dynamics,

we might conclude that those who wish to pay for the software should do so no matter

where they got it, as a donation, in comparison to choosing a source for the software

depending on whether or not you want to pay for it. The marginal costs to produce an

extra copy of software are minimal, so when more people download, a smaller percentage

of people or smaller donations are sufficient to cover the same production costs. For

software with a fan following of users seeking fresh updates, accepting donations from

volunteers may be enough to cover the costs of some product improvement. If Weber is

right that the property model that built the success of open source can flourish in other

idea economies, we should consider its strengths and as individuals releasing content in

other fields, consider adapting


One of the best strengths of open source software is that it provides greater

opportunities for efficiency than the available proprietary models. It does this by avoiding

the permission and licensing barriers, at least within the open source community. As

Weber notes, "The last thing a programmer, particularly a volunteer programmer, wants

to do is build from scratch a solution to a problem that someone else has already solved

or come close to solving" This leads to seeking efficiency by developing a large public

code-base that can move easily across corporate boundaries where proprietary code is

blocked. Even large corporations could benefit by adapting to use open source software

to tap into its efficiency. Opting into open source opens up an enormous code base to

build upon immediately, where dedication to the proprietary model means that all code

must be purchased as needed. Companies obviously first focus on choosing programs that

are right for the job, but also take other factors like price into account. If open source and

proprietary options were equally qualified and equally priced, the open source software

would still have the freedom to tinker and distribute on its side. The efficiency weighs in

again. Open source relies on evolutionary processes to create complexity,74 which means

that the preservation and reuse of previously developed bits of content are important to

the advancement of the whole collection. Thus, a monetary flow to an open source

project may go further than the same amount to a proprietary project. The challenge of

drawing in monetary resources to fund open projects remains. I will now turn to address

some options to meet the goal of providing open content and providing compensation to

the creators on a market-wide scale.

4.6 Open Source Currency—A possible model

74
Weber, 75-76.
Here is a possible model for a large open source software company to collect

donations from a large user base and direct them to contributors in a way that encourages

the best development of the public resource, the software. The possible system I describe

here may be suitable to large projects or collections of projects organized by one agency

or cooperative. It is an independent currency scheme to create a compensation pseudo-

market to pay for contributions to public code.

The problem distilled is how to channel compensation from users to developers in

a fair manner to establish an incentive to contributing. Currently, a lot of the actual

programming work that goes into open-source software projects is done on time donated

to the project by programmers who have free time to devote to it. This donation of time

might be aimed at improving a product because of personal desires for functionality, it

might be an altruistic attempt to benefit the community of users, or it might be something

else. In most cases of open source work, there is no expectation of monetary

compensation from the originators of the software or from the community who uses it. A

vibrant catalogue of open-source software has arisen under these conditions, allowing

many computer users to perform tasks from video editing to word processing to gaming

without many proprietary software products. If a user desires to use only open-source

software, a whole system based on nothing but free open source software is possible.75

However, the commons of open source software could be better if this issue of

organization were resolved.

75
This is easily accomplished using a flavor of Linux (If strict open source is required open source device
drivers may be found for most hardware), the open source productivity suite OpenOffice, Mozilla web
browser and email clients, and a variety of free small utilities. Your system may not be able to play
proprietary media formats like MP3 music, or DVD video upon install, due to the license restrictions on
including these technologies with open source software, but licensed software solutions are available, often
for free.
Imagine a large software company with a popular open-source product that needs

some improvements. Despite these shortcomings, it has a large user base willing to make

some donations to the cause, just as they are sometimes willing to pay for proprietary

software when it is the right tool for the job. The software company makes up a list of

projects that need to be done to improve its open source software products and auctions

them off to programmers who put in bids for number of hours they will take to complete.

When a programmer completes a project, he or she is paid one unit of an independent

currency minted by the company for every hour bid. The unit of currency itself (we will

call it the Buck) is worth nothing, but it may be exchanged for actual donations from

customers Perhaps when a donation comes in for 30 US dollars a behind-the-scenes

auction occurs and programmers who hold Bucks bid to cash them in for the $30

donation.76 Whoever offers the most Bucks wins the auction and the trade occurs. There

would be no minimum wage, but this would establish a sort of free market for donations.

The more hours contributed to projects, the better chance a programmer has at getting a

portion of donations that come in. The better an individual developer's reputation, the

higher the chance is that he or she would be offered a direct exchange for Bucks at a

higher than average wage. Donors could ransom their money (in Bucks purchased with

dollars in the first exchange) to specific projects on Software Company's wishlist, to fast-

track features most important to users. This functions as a vote on desired features. Thus,

the future direction of the software moves toward improving features specifically desired

by customers who are willing to pay while maintaining free access to the latest and

greatest versions of the software to all. Open source projects that are popular garner more

76
Such an auction would have to be completely automatic or it would be too cumbersome to work. Suppose
Buck-holders set a wage they want to pay themselves per hour of donated time, and when donations come
in, the lowest bids get paid first out of any available money.
donations. This is a merit-based solution that will guide more compensation toward

projects that have more value, however intangible the actual value of a piece of code is.

This by no means would establish a guaranteed income for programmers. The

dollar value of specific contributions to public open code is hard to pin down, but a

system that would fund future contributions in advance with voluntary donations would

place a greater incentive toward actually getting projects done and improving the public

commons of code. If this scheme works and a finished product is created that needs little

new improvement, Bucks may be shifted to new projects or would just naturally lose

their value, so programmers needing this type of incentive would be enticed to create

new, relevant projects. Bucks only maintain their value as long as they can still be used as

incentives to create new valued content.

4.6.1 Criticism of this scheme:

Such a plan is more complicated than the software company putting dollar value

on projects, accepting targeted donations for those products in dollars, and distributing

some of those dollars to programmers who bid on the projects and then complete them. Is

there any evidence that the Bucks scheme might work better than a simpler dollars-only

system? The company's ability to print new Bucks to pay for desired features means that

an incentive (of some degree of value) will exist to compensate programmers even when

donations are low if the programmers expect that the improvements will spur donations

later. The value of the Buck is based on the value of the software, which increases with

more contributions of programming work. There might be potential to treat them as an

investment that might increase in resale value as more people use and appreciate the

software. Programmers will spend their time on projects that appear to have greater

potential value to users who might someday donate.


Another problem is that current levels of donations to open source software and

projects would probably be insufficient to support such a scheme. If the ability to control

new features of software was not a sufficient incentive for people to donate more, such a

scheme would not be worth it. Total donations may need to increase to keep the

incentives meaningful if more Bucks are printed up to cover new features. In order to

encourage this, more Bucks should be printed only when the features or improvements

they pay for can create enough new value to incite new donations.

All things considered, would such a plan work? The main barrier to channeling

voluntary contributions to a public good with such a system is overcoming the freerider

problem. In this plan's favor, the ability to target donations toward particular upgrades

may allow an established product to maintain a steady flow of donations. Selling Bucks

may make people realize that without their contribution, the particular upgrade they want

will take a lower priority. This principle may apply to a scheme covering a number of

small software projects instead of one large product as well. When a donor buys Bucks

from an individual developer who worked on a project, that developer may be able to

afford to give another stab at the project. This preserves the incentive effect of the

scheme. The public gets free software (free to use with the freedom to modify), some

who can pay will be encouraged to support the project with donations, and these

donations flow to the developers who do the work, as long as the company creates an

appropriate number of Bucks.

4.7 Norms and the regulation of free culture


What norms should exist in the relationship between the producers and consumers

of culture? Between producers and producers? These will become necessarily linked as

technology makes it ever easier to enter conversation with other producers works, and

opening these possibilities to a wider and wider segment of the population.


Daniel Solove defines a norm as "a rule of conduct, one less official than a law,

but sometimes as improper to transgress."77 They are not legislated as laws are, but arise

in communities as they struggle to enforce a social order that matches their values. While

the law contains well-established norms, creating some overlap between the categories,

"norms cover a wider range of conduct".78

They are enforced differently than laws. Instead of a state entity punishing

transgressors, individuals in the community take it upon themselves to police norms by

meting out social consequences for improper behavior. Most of these punishments must

occur in the moment, against transgressors by witnesses, which limits the range of

possible actions. The Internet is opening new possibilities for norm enforcement,

allowing more people to participate in the enforcement of social norms beyond

immediate witnesses, and intensifying punishments. Furthermore, the persistent nature of

distributed information on the Web can make it so norm violators are branded with

"digital marks of shame" by a "cyber-posse" of bloggers.79 The potential for shaming is

enhanced by improvements in both search technologies and social networking services

that increase the connections between a person and their actions in digital space.

Between producers and consumers, content moves in a one-way flow. Authors

(sometimes with publishers) do all the work of production, and consumers receive

valuable content. It is good for culture to receive the fruits of the creators' labor, so it is

best if skilled creators are able to fulfill their needs while producing content, ideally

through the production of that content. In a system made efficient by division of labor, it

Solove, Daniel. 2007. The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. New Haven:
77

Yale University Press. 86.


78
Solove, 91.
79
Solove, 6.
is good if just compensation can flow to those who produce goods and services of value,

so that there is an incentive to continue to produce. The Copyright Clause of the

Constitution, in specifying that exclusive rights are "to promote the Progress of Science

and Useful Arts," is one of the few clauses to mention a specific purpose to achieve

beyond a very general guideline to promote the general welfare. Ensuring that economic

rents paid for specific content goes to its author is the function of the right the Copyright

Clause grants to creators. Norms governing a producer-consumer relationship should

cause compensation to flow to creators of valued content from its consumers.

What norms should regulate transfers between nonproducers? It takes almost no

effort or cost to transmit a digital file to another person or another thousand. Just as how a

transfer of content from a producer to a consumer is a transfer of value, a digital transfer

between consumers also adds value when content is copied. There can be a downside to

such transfers if they interrupt the flow of compensation from consumers to producers,

because then the ability of those producers to create future content is potentially

threatened. Such transfers are embattled. They are illegal under copyright law, and the

RIAA argues that they contribute to lost income from CD sales or other producer-

consumer exchanges.80

This is a question about derivative works. As I have previously argued, all content

is based at least partially on existing content, and in general, this is fairly obvious. For

example, all poetry in the English language is based on the shared content of the language

itself at one level, and many turns of phrase exist in a kind of conversation with content

circulating around culture. Copyright protects a new idea despite the fact that some of it

is based on previous works if it is distinct enough from the prior art, analyzed on a case-

Evangelista, Benny. “RIAA decries drop in CD Sales.” The San Francisco Chronicle. 3 September, 2003.
80

< http://www.sfgate.com/cgi-
bin/article.cgi?file=/chronicle/archive/2003/09/03/BU249534.DTL&type=tech>
by-case basis. A norm for creator-to-creator transfer should restrict the dissemination of

work that is too similar to an existing work, yet maintain significant freedom to elaborate

on ideas circulating in culture. Just as with a producer-to-consumer transfer, a norm here

should provide for some kind of compensation for those whose ideas are used as well as

recognition for their contribution.

Because of these reasons, norms that could govern the transfer of content should

solve the compensation problem and promote the dissemination of existing and new

content. I will argue that norms can function powerfully in these areas, especially because

of new mechanisms enabled by the Internet. The broad goal of remix-regulating norms

we may establish is progress, like the goal of any intellectual property regulation.

4.7.1 The Rip-off norm

There is a norm that exists in the domain of cultural content production that

currently works as copyright should to encourage new content and discourage plagiarism.

This is the norm against a rip-off, an appropriation of somebody else's idea without a

significant original contribution. An artist who offers such a piece suffers social ridicule.

Under the current system, this norm may be enforced through a civil suit as well, but

legal punishments are outside the ability of norm enforcers to regulate.

It is important to consider both the positive and negative consequences of this

kind of vigilante justice. In some cases harsh social punishments may not be an ideal

solution for promoting a social goal. In the case of encouraging new content and

discouraging plagiarism, the current solution of legal enforcement limits a lot of content

distribution and imposes harsh penalties on those caught offering unlicensed derivative

works, so it is subject to the same concerns.

There is an intuition-level consideration of whether or not a particular case of

using another person's idea is justified. This decision is based on the relative amount of
value added to the original creation. If the remix artist adds significant value in the

process of creating a derivative work, there is less reason for individuals to castigate him

or her for ripping off the work. If there is a new turn, joke or perspective gained in the

remixed version, this can outweigh an impulse to criticize a content creator for theft. If

little of value has been added, people feel that the second release is a rip-off of the first

and that the second author is taking advantage of the labor of the first. I think it is

important that this distinction is from intuition, not based on the copyright status of the

content, but instead on an assessment of the value of a derivative work's content. Two

examples that illustrate how the Internet functions to help enforcement of this norm

differently based on such an assessment are the Grey Album and a traced cartoon by an

artist named Shmorky.

A music producer under the name Dangermouse dedicated some time to remixing

two important cultural works to create The Grey Album, a piece he never received any

compensation for, because he was not allowed to sell it. Jay-Z based his Black Album off

of the Beatles' White Album such that the Black Album is in conversation with the

Beatles' songs, which were some of the most important pieces of their era. Dangermouse

brings these two together, offering a further iteration and complication in this

conversation. This is a perfect example of the natural process of building on the cultural

works that have come before. It is not just a rip-off, and while Dangermouse's album was

blocked by a copyright claim, he did not suffer social penalties for violating the "ripping

off" norm. When the Grey Album was blocked by copyright claims and Dangermouse

offered it for free download instead, over 100,000 people downloaded it. Dangermouse,

while unable to acquire any direct profit from selling or performing the Grey Album, has

advanced his career since the incident, playing at large venues and appearing on award
shows as a duo with Cee-Lo Green under the name Gnarls Barkley.81 This is the first

example.

The second example is one where the public's intuitive sense went the opposite

direction. Todd Goldman, an artist and T-shirt designer sold a painting in an art show that

closely replicated a cartoon drawn by somebody who goes by the online personality

"Shmorky". The drawing was of an animal offering her nightly prayers, "Dear God, make

everyone die. Amen" and Goldman's replication was almost identical. When people

familiar with Shmorky's work came across the Goldman painting and found out he was

selling it for profit, they posted what they had found on the Internet. The story and the

images were rebroadcast on several websites, including social networking site digg.com,

which aggregates suggested links from its many members and publishes lists of the most

popular ones every day. Thousands were exposed to the evidence that an artist they had

probably never heard of had ripped off another artist they had probably never heard of.

The act of plagiarism was attached to his online reputation permanently, dominating the

content on a Wikipedia entry about him,82 and cropping up in different iterations as many

of the most "relevant" links to searches for his name on Google. Goldman felt the

consequences directly on his ability to make profit on his other work even after he made a

settlement with Shmorky, seeing several galleries stop showing his work and wholesale

customers for his posters dry up and demand refunds for unsold stock.83

Good Copy, Bad Copy. Dir. Andreas Johnson, Ralf Christensen and Henrik Moltke. 2007.
81

<http://www.goodcopybadcopy.net>.

See Goldman’s Wikipedia entry here: http://en.wikipedia.org/wiki/Todd_Goldman (last retrieved 11


82

November, 2008.)

Rosenbaum, S.I. “Artist’s Work Looked Familiar.” St. Petersburg Times. 8 May, 2007.
83

<http://www.sptimes.com/2007/05/08/Tampabay/Artist_s_work_looked_.shtml>
Figure 2. A comparison between Shmorky's original drawing, left, and Goldman's
copy, right.

There are a couple important distinctions between these two cases. I believe the

public made a distinction individually that led them to enforce the rip-off norm enforced

against Goldman while Dangermouse escaped relatively unscathed from the norm police.

He suffered only the legal consequences.

The contribution of some new value to the idea may counter an incentive to

enforce the rip-off norm. Because the Grey Album's combination between such disparate

styles of music as the Beatles and Jay-Z provides such a different listening experience

than either the White Album or the Black Album, Dangermouse may have escaped

pressure from the Internet community to respect the rip-off norm. Goldman's drawing

was perceived as an insignificant addition to the content Shmorky produced, and he

suffered the punishment of the Internet norm police.

It may also be significant that in each case the norm police supported the

"underdog" against an established media force. The copyright enforcement of the Beatles

music franchise was leveled against Dangermouse, a relatively unknown content

producer and the music-listening community did not lend its social weight to that fight.
The Internet has enormous potential as a tool of norm-enforcement. It allows for

more effective shaming than is possible in many real space situations by allowing the

shaming to continue outside the moment of the violation and allowing widespread

participation. Solove claims that it is an important regulator of social life, that “without

shaming, many violations of norms would go unpunished."84 It “may provide valuable

information to assess each other's reputations" because it provides an increasing ability to

gather information on the people we encounter.85 There are potential downsides of the

Internet as a shaming tool in that its consequences are sometimes too serious. Solove

says, "the problem with Internet norm enforcement is that it often spirals out of control"86

and "is often difficult to ameliorate...a tarnished reputation is hard to escape from."87

Google history, social network profiles, photos, and cached copies of deleted pages

persist on the Internet. Some of these easily connected to the shamed person, so it may be

hard to separate an individual from the norm violation that was punished. In cases where

a false rumor led to shaming, Solove suggests that the best course is to "spread correct

information as rapidly as possible”.88 The corrected information would then eventually

circulate around to various sources of shaming, and the barrage could end. Similarly, if a

norm transgressor has done something to make up for the violation, such as Goldman's

agreement with Shmorky, this information should also spread so that shaming may end.

The end result is not that the evidence of norm transgression completely goes away, but is

connected with information showing the results of the shaming, and if results are

84
Solove, 94.
85
Solove, 95.
86
Solove 95-96.
87
Solove, 37.
88
Solove, 98-99.
sufficient, motivation to punish the transgressor fades. Much of the undeserved damage

that can possibly be done to a reputation by a false rumor is less likely to happen when

dealing with enforcing the "ripping off" norm, because enforcement of this norm is based

on evidence that can be examined, such as the comparison between Goldman's and

Shmorky's drawings above. Internet has a better and quicker error-correction mechanism

than most mainstream media, mainly through the large variety of sources, quicker

communication between them, and comments from users. Richard Posner observed,

"the blogosphere as a whole has a better error-correction machinery than the

conventional media do. The rapidity with which vast masses of information are pooled

and sifted leaves the conventional media in the dust. Not only are there millions of blogs,

and thousands of bloggers who specialize, but, what is more, readers post comments that

augment the blogs, and the information in those comments, as in the blogs themselves,

zips around blogland at the speed of electronic transmission"89

Under the relative anonymity of city life and the possibility of more easily

escaping a bad reputation by moving, shaming punishments are ineffective, but the

Internet reverses this dynamic. By connecting so many points of incoming information

and building stronger connections across broad distances in real space, it reduces

anonymity and makes a bad reputation harder to escape. Overall, the Internet both makes

it easier for information to persist for a long time (once a rumor has been posted, cached

copies may survive even if the author deletes it) and makes it easier for information to be

linked to particular people.90

Posner, Richard A. "Bad News." N.Y. Times, July 31, 2005.


89

<http://www.nytimes.com/2005/07/31/books/review/31POSNER.html>
90
Solove, 8-9.
The goal of enforcing a prohibition against ripping creators' content off as a norm

is to create a community that doesn't merely ride the coattails of popular content but add

significant value through their own effort. It ensures recognition of the person who

created the content and ensures that any compensation derived from the work flows to its

author.

This is remarkably similar to the intent of intellectual property protection set out

in the Constitution. The norm operates parallel to intellectual property protection to

encourage new content and discourage copying without new value added. A law

professor, Robert Cooter observes that “norms often work through a process called

"internalization,” meaning that people follow norms not because they fear external

shaming by others, but because they would feel ashamed of themselves if they violated

one.91 The goal for content creators is to get this norm internalized in the public so that

the artists receive proper recognition for their work and don't lose credit to those who rip

them off. In this function, the norm serves to incentivize the creation of new content

instead of simply rebroadcasting existing content. This leads authors to make progress in

their ideas by not relying too heavily on existing content.

4.8 Tenure: A model of reputation norms in practice


The model by which college professors receive compensation is an example of a

reputation-based system where rewards are delivered separately from their contributions

of content to society. It is a perfect model that is open to free distribution of content.

Professors' income is not dependent on royalties from books (the incentive copyright

provides), but instead on the paycheck of an institution that bases employment "value" on

the value of the content they publish. A professor's primary function in a university is a

91
Solove, 98-99.
teaching role, but the publication role is so important to her career that the aphorism

“publish or perish” is appropriate. Those who produce highly respected works are

valuable commodities. The flow of content from professors to readers is separate from

the flow of compensation from students (through their university paycheck), so it does

not matter how many copies are sold. Producing better and more popular content makes a

professor gain more benefits from their employer, so there is an incentive to produce high

quality publications despite the low volume of the book market professors compete in. In

such a market, the copyright royalties would be insufficient alone to incentivize this

creative effort, but the official channels of pay may be enough to do so. Digital

distribution costs are minimal, and a professor's reputation is only improved by

popularity. Because the incentive exists elsewhere in the system, it is not necessary for a

professor to restrict her content from the public.

Little money flows in to a published professor through royalties, but she does

derive benefits through her position. Even if there were no copyright, she would still get

the job. Furthermore, nobody else could steal that benefit from her, because there is

record that she is in fact the author of her books. This provides one model of how

somebody could be a successful creative producer in a free culture. Professors are not

dependent on selling the product (which could be free); They are marketing themselves

and their creative capacity. Nevertheless, they may still sell hard copies of books even

when the content is available for free and gain additional income.

In the academic world plagiarism, not duplication, is the real threat. Rewards are

gained through establishing a reputation. This necessitates the ability to accurately assess

the value of an individual's contributions to academic discourse. College professors are

pressured to maintain a meticulous curriculum vitae detailing their published work. All

individuals in the system could suffer if some can potentially get away with claiming
credit for work done by others, so it is to the advantage of each that it remain transparent

and accurate and that violators are punished or discredited. In order to convince

professors to to try and become top academics, the rewards must accurately follow

prestige earned through significant contributions to the state of academic understanding.

Thus academic honesty policies protect honest academics from violations of norms that

exist to ensure fair market competition for rewards and advancement.

Norm punishment is not very centralized, but enforcement is widespread and

severe. Each member organization must harshly enforce violations in order to protect the

system. The combination of dense interconnectedness of information and strict attitudes

toward plagiarism in the academic sector can adequately prevent outside parties

publishing a work as their own. American intellectual property lawyer Stephan Kinsella

sees no way to cash in on the reputational benefits earned by others through plagiarism,

asking "Why are you doing it? …You'd just be a laughingstock."92 The Internet makes

plagiarism drastically easier to detect as it drastically increases the opportunities for

detection. Kinsella continues,"As for a novel, if you publish it, it's either going to be a

knockoff under the author's name on it or it's a knockoff with your name on it…With

your name on it, I think the buyers have a potential fraud claim."93 Marketplace and social

norm enforcement should be sufficient to prevent plagiarism, because the consequences

to reputation in the academic community are so harsh.

4.9 Reputation as Value


As the example of professors' reputation-based incentives to produce content

showed, compensation may be provided for content in some contexts without any

Kinsella, Stephan. “Rethinking IP Completely” Austrian Scholar’s Conference. 13 Mar. 2008.


92

<http://video.google.com/videoplay?docid=280262988255234681&hl=en>
93
Kinsella, Stephan.
restrictions on use of their content. Better professors are rewarded monetarily for

producing better content, but this payment does not depend on license agreements. Freer

distribution enhances the reputational benefits because it opens content up to those who

would not choose to spend their money to buy it. The work's prestige is enhanced when it

enters into conversation on amateur blogs, just as when it is reviewed in traditional

publications. Different populations use varied tools to sort through all the available

content in the world. Lessig proposes that

“three layers [content, links and recommendations, and tools to analyze


content's usefulness] work together. There would be nothing without the
content. But there would be too much to be useful were there only the
content. So, in addition to content, content about content--tags, and
recommendations-combined with tools to measure the influence of
content. The whole becomes an ecosystem of reputation.”94

A professor's reputation in Lessig’s three layers of system is as a value-finding tool,

necessary to sort good content from bad. Those responsible for good content are

considered for raises and job offers, potentially bypassing others who do not make the

same level of contributions to academic discourse. Through this example, we can see that

a government grant of exclusive rights is not the only structure that can ensure

compensation flows to authors. Alternative, individual-based structures are possible that

do not impose such burdens on the public. Individual content producers must recognize

the channels they aim to receive compensation through and only assume exclusive rights

to use an idea when that is the only method to gain compensation.

4.10 New Model for individuals: Selfness


We have seen that how an idea is allowed to circulate, develop, spread, and

contribute to derivative works is largely dependent on choices made by its creator about

what kinds of protection to apply. Both maximal protection that limits use to specific

94
Lessig, Remix, 61.
licensing agreements and more liberal approaches are available. I have explored some

advantages of freer access to culture and how cultural norms can be protected without

using legal mechanisms through reputation-based enforcement. But even if the

advantages are clear, this will probably not be enough to convince individuals to move

toward free culture by risking their own interests. The question remains, what could

motivate an author to give his or her ideas away freely when others in the marketplace

protect their rights maximally?

A utility and risk analysis of content creators risking their time creating content

under either proprietary or free models is difficult. Typically, an author who wants to

create content but has no advance funding cannot guarantee returns from either model. If

he chooses the standard proprietary model, he must still convince a publisher to release

and market the book. If he allows free access to the manuscript online, there is no

guarantee that readers who download it for free would donate. Before choosing one of

these options, a prospective author should step back and consider how this choice will

affect his opportunities for compensation as well as how it would affect others' access to

the content. Compensation comes in a combination of economic and social benefits, so

both realms should be addressed in this decision. Free access may allow the easier

accumulation of social benefits and reputation, so if the economic risk is similar for both

paths, social and reputation benefits that may lead to later economic rewards could take a

more prominent role in the author's calculation.

The other side of the coin to consider is the benefits provided by holding on to

rights over creative work, because these are the costs of moving to a liberal license

scheme or abandoning protections over intellectual property. These can often be

measured, however imprecisely, in dollars and cents that might be extracted by licensing

or sale. The decision of what to do with intellectual property rights, when it is even
considered, may often be a cost-benefit analysis between these competing sets of

advantages. Under a property-based model the author asks "what will be best for me?"

and focuses on how the decision will affect his lifestyle, because the primary purpose of

property is to provide for the good of the owner.

In the spirit of moving beyond a self-centered cost-benefit analysis, I would

encourage creators to ask, "what is best for my ideas and for other people?" as well. This

includes questioning whether ideas are fit to be property, or if some other piece of human

experience serve as a better source domain for our metaphor describing how we should

interact with our ideas.

Jorge Cortell, a former lecturer at the University of Valencia in Spain, proposes an

alternative for how humans should view their ideas that takes the question of what is best

for the ideas into account. He suggests that creators should think of ideas not as property,

but as persons in their own right. The key component of such a suggestion is that ideas

have what Cortell calls "selfness", meaning that they exist in their own right. This

justifies a belief that they cannot be completely controlled by someone, even their creator.

The notion that ideas have selfness is based on the metaphor "Ideas are People".

Here are several important mappings of this metaphor that seem to fit:

We must also address the most relevant differences between ideas and people.

Can we imagine an idea with conscious interests or intentions? These characteristics are

key considerations that lead us to protect the rights of people and animals, so if we could

extend them to ideas, a similar argument might be made. We could assume intentions to

assign to ideas, based on human characteristics, like the need to socialize, but this would

only work if the metaphor were strong enough to sustain this kind of reasoning. It is the

natural process of a metaphor to fill in concepts in the target domain with content from

the source domain. We saw how the law, in interpreting ideas as property, treats ideas in
the market as physical properties despite their nonrivalrous nature. Assuming a human

perspective when asking what is best for an idea even though it cannot express its desires

is a similar stretch, but at least it allows us to address this question at all. Considering

ideas as inert objects for human actors would not bring you to any conclusions about

what is best for the idea, only what is best for humans who might use it. This is a valid

question as well, and closer to the constitutional goal of progress, but I think the idea's

perspective may still be useful. Artists who struggle to express a pure idea may consider

the value of people's appreciation and benefits they may receive because of the

expression, but denying that there is value in the idea itself limits its power and goes

against the artists' intuition. It may be enough that ideas might have destinies in full

expression and universal accessibility; in any case, assuming such a goal for ideas would

fit with the Constitution's goal of progress for humankind.

Ideas Are Children


A creator  Parents
Human creativity  The ecosystem in which people live
out their lives and relationships.
Relationships with others (with creator,  Relationships with other humans
creator's other works, other people, and (with parents, siblings, and others)
other ideas)

Life of an idea as development  A child growing into an adult


Ideas that form the basis for this one  Parents, grandparents, great-
(inspiration) grandparents…
Ideas that will arise from this one  Children, grandchildren
(derivatives)
The content of an idea <-- The content of a child's character
(encompassing knowledge, ideas,
beliefs, capabilities and life
experiences)
The idea that ideas are like people does not abandon the concept of ownership

completely or sever the strong intuitive connection between artist and creation that comes

out of the process of creation. I have argued that this connection is one of the

fundamental characteristics of ideas. It is so strong that to consider ideas as having

selfness, a more accurate metaphor would be a parenthood metaphor, "ideas are

children." The parenthood metaphor maintains the strong connection between artist and

work, so that saying "my work" is still absolutely appropriate while admitting that the

ideas might have some life of their own, independent of their creator. Considering ideas

as children brings the following mappings into effect.

In the realm of parenthood, the question of what is best for the children is the

paramount consideration, often rising above what is best for the parents, although both

questions are considered. If the metaphor is successful, this consideration should be

important in the realm of ideas, far more important than traditional intellectual property

rights would suggest. We can see that what is best for the ideas is more important for

human society in the long run My concern is for primarily for humanity rather than for its

ideas, and this metaphor may allow creators to realize that placing their ideas in a healthy

environment is good for both the development of the ideas themselves as it is for

humanity. Human creativity forms an ecosystem for ideas to develop.

A healthy environment for human creativity includes broad access and the ability

to remix culture. As a “parent” of an idea, a creator should recognize that the idea's

development is not complete when the parent's act of creation is done. It is informed and

changed by a lifetime of experience in the realm of human social creativity, as it is

remixed and recast. Parents who would insist on complete control past a certain point in

their child's development would rightly be shunned. Even though ideas do not have

consciousness of their own, recognizing how they grow and develop into their best forms
is critical to our human development. The direct implication of this metaphor is that the

ecosystem where ideas develop is made of human consciousness, even though much of it

may be expressed in technological media. The progress and health of the idea ecosystem

is important to us, because it is an important part of our minds. Since we have progress as

a goal, it would be appropriate to choose a metaphor that describes how progress might

be achieved,. The intellectual property regime tells us a story about authors and inventors

risking their time and resources to provide a public good because they depend on income

derived from it,but cannot afford to compete with others who could otherwise freeride on

their effort in order to justify the creation of exclusive licenses that curtail others'

expression. A model based on an idea's selfness tells a different story, and justifies

different behavior without the need to regulate expression so fundamentally.

The model of raising children to be free individuals with their own consciousness

and decision-making agency, when applied to the social-intellectual ecosystem,

prescribes a pattern of open access, and freedom to remix. Our dedication to free speech

impels us to set up an environment for our children and our ideas where their expression

is nurtured, they are exposed to the best ideas and people of their time, so that they

flourish and make progress.

For example, the mere concept of a marketplace of ideas has taken on great value

to educators who model their classrooms on the free transfer and examination of ideas.

This value is mostly independent of the thinkers who originated and spread the idea, from

Plato through John Stuart Mill, Oliver Wendell Holmes and the teachers themselves,

although the concept's connection to them is not lost. The opportunity it creates in a

classroom for exploring and spreading new ideas is where the real value rests.

The Constitution pushes us to realize Progress in science and understanding,

which in the long term is achieved by spreading the best ideas freely to as many people as
possible. The limited terms of artificial monopoly were intended to create this effect, but

as the terms became longer than the span of a human life, intellectual property law

became less and less protective of the type of Progress that can occur through free access.

Today, authors and inventors have a spectrum of options for how to treat their ideas and

have the option to allow the public to reclaim some freedom over them, but the norm is to

use the metaphor "ideas are property" to describe their relationship with ideas, so

opportunities are overlooked. A parenthood metaphor for ideas would encourage creators

to embrace freer access to their ideas on the part of the public, even when the power of a

strong copyright regime is available to them.

The realm of child-rearing gets a lot of attention, because it is one of the most

critical tasks humans perform. The advancement of understanding, and its propagation to

future generations through individuals' offspring, I would argue, is a critical and related

task. We transmit not only our genetic material when we raise children; we also spread

our knowledge and values.

As the parenthood metaphor reveals, the task of raising children and of cultivating

ideas share strong parallels. Choices made about how children and ideas are allowed and

encouraged to develop are supremely important. Parenthood implies responsibility over

the developing child, up to a point. The suggestion that ideas have a life cycle, that they

reach maturity as a human might, means that at some point they could "make their own

decisions" and should have the freedom to do so. When we say that “I gave him an idea,”

we are more accurately describing sharing than licensing. At the point when we “share”

our children with others, when they grow up and move out of the house or when they get

married, we no longer have the same degree of control over them, but they are still

entirely our children, and that relationship is one of the most important defining

characteristics of their lives. When we publish, when we “give somebody an idea,” we


need to choose to understand this with a metaphor that recognizes the loss of exclusive

control without losing the intense connection with the idea a creator calls “mine.” The

parenthood metaphor accomplishes this better than the intellectual property metaphor. I

believe that if individuals adopt it to describe their relationship with their ideas, they will

recognize their ideas and the people who they meet are better off with a healthy

ecosystem of ideas shared among them than when ideas are kept legally cloistered.

4.11 Free Speech Balance at the Individual Level


Another point to consider when talking about freedom is the approach courts take

toward government actions that restrict individual's right to free speech. Individuals

should adopt the perspective of a court and determine the necessity of any speech

censorship, balancing its impact against its necessity as an incentive.

Individuals must justify when they censor others’ speech. Speech is a fundamental

right. What objective are you furthering? If the creation of the content is in peril, if you

need the compensation in order to create it, that’s one matter. Is there any justification for

censoring if you don’t need this protection to produce the content? If the idea has value to

humanity, it may be justified to adopt the language of strict scrutiny, so the question of

whether the restrictive rights claimed as intellectual property are the least restrictive

means to establish the necessary compensation flow.95 Just as minimal negative impact in

the accomplishment of an objective is the goal of a legislative action, it should be the

goal of individuals assuming protected monopoly status.

4.12 Personal Responsibility and Progress


I submit this paper as an argument to individuals in all walks of life to recognize

the importance of free access to ideas, both to read and remix. The barriers to accessing

95
Trying to decide whether or not a free speech restriction passes strict scrutiny would require the regulation
to be the “least restrictive means” to achieve a “compelling” government interest. Solove, 128.
your content begin and end with you. We need a healthy commons of content accessible

to all who share our human languages, and anybody's content has potential use, even if it

is not apparent when you publish it. Through intentional licensing strategies, individuals

can ensure that their content remains accessible to communities larger than the people

they may negotiate with directly. We owe the progress we make with ideas in our own

workshops, in our own lifetimes to future generations. When it comes to ideas, giving a

healthy commons of content to our children would bring revolutionary progress. We

could never expect what our children would make with such a treasure trove.

Progress is an American value. It is no surprise that “Progress” appears in its

special location in the Copyright Clause, because America is rooted in the belief that we

can thrust ourselves and future generations above the problems of the past. If we are to

demonstrate to the world that there can be a shining city on a hill, that a people can unite

to create something for the good of humanity, let us show it with our ideas. Individuals

must take responsibility for the content that they produce, to ensure that it remains as

open as possible for others to learn from and build community around. Let every

individual respect his and her intellectual creations with the love they feel for their

children and future generations. Let us value them enough to grant them freedom to

circulate among the whole community, to be combined with the best work that others

have to offer. Let us respect that our fellow humans may have something valuable to add

to our expression even if they cannot pay to use it. Even when governments come to

recognize the imbalance that strong IP has created and begin to shift regulation away

from so deeply regulating expression, this will be a movement about the individual scale,

about creators who want to share what they have done with the world.