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

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This work is licensed under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA.

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An Abstract of the Thesis of Nathan Andrew Otto for the degree of to be taken Bachelor of Arts November 18, 2008

In the Department of Political Science

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.

v 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 3.1. 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 4.1. 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

3. Chapter 3: Future Commons

4. Chapter 4: New Models and Individual Change

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,

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Lessig, Lawrence. Remix. New York: Penguin Books, 2008. 100-101.

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>
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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
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.
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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.
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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 networkconnected person. The gap between the fact that millions of people infringe intellectual
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.
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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-beprosecuted, 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
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Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001. 5. Lessig, The Future of Ideas.

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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 takenfor-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
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.
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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 country, people, community, etc., typically consisting of words used within a regular grammatical and syntactic structure.” “language, n.” Oxford English Dictionary.
10

See Lang, Peter. Literacy as a Civil Right: reclaiming social justice in literacy teaching and learning. Ed Greene, Stuart. New York: Peter Lang Publishing, 2008.
11

Morris, Paul J II. and Tchudi, Stephen. The New Literacy: Moving Beyond the 3Rs. San Francisco: JosseyBass. 1996. 12
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, Dow Jones & Company, 2006-08-30. Retrieved on 2007-11-24.
14

See Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press 2006)
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“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.”
16 17

Lessig, Lawrence. 2001. The Future of Ideas. New York: Vintage. 13. Lessig, The Future of Ideas. 267.

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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 farreaching 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. 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.
19 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 Ideas have content in intangible form that can be assessed through communication and thought. An intellectual author creates an idea. are  manufactured physical artifacts. Manufactured objects have content, in their shape, materials, and applicability. A manufacturer creates a physical artifact.

An idea can be distinguished from  other ideas based on the content.  Ownership of Ideas may be permanently transferred to others (By selling a copyright to an idea you create through a work-for-hire arrangement, for example) Ideas may be temporarily licensed  to others (Others gain access to the idea by paying a fee) Ideas are nonrivalrous (One person <-/possessing the content does not preclude another from possessing the same content) Ideas are naturally “fugitive”— <-/They cannot be naturally contained Ideas are accessible to individuals <-/by acquaintance and then continually freely accessible afterward. You cannot take an idea back from someone once you share it. Ideas are infinitely duplicable with <-/minimal cost with (far less labor than originally devising them)

One physical object is distinct from another based on its content (form, practical use) Manufactured artifacts may be permanently transferred to others (selling a title, for example)

Artifacts may be leased to others (Others gain access to property by paying the owner a little money) Physical objects are rivalrous (when one has a certain artifact, others cannot simultaneously possess it) Owned physical artifacts will not escape naturally. The content of physical artifacts is accessible when possession is temporarily shared, transferred, or permanently sold or given.

Physical artifacts take time, resources, skill, and labor to produce. Some per-unit 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 permanently transferred to others (By selling a copyright to an idea you create through a work-for-hire arrangement, for example) Ideas may be temporarily licensed  to others (Others gain access to the idea by paying a fee) Manufactured artifacts may be permanently transferred to others (selling a title, for example)

Artifacts may be leased to others (Others gain access to property by paying the 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
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.
22

MacQueen, Hector,. Waelde, Charlotte., and Laurie, Graeme. Contemporary Intellectual Property Law. New York: Oxford University Press, 2007. 227.
23

"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 e  Natural Resources A prospector discovers and extracts natural resources. Natural resources are found on or in land, placed there by natural forces. A patch of land may contain small or large quantities of valuable material. Extracted natural ores have content of various minerals that vary in instrumental value depending on their application in the marketplace.24 The originator or others make finished products from the natural resources. (A jeweler fashions a gold ring.) Extracted natural resources may be exchanged directly. Interest in claims of minerals still in the ground also are available. A customer buys a finished product made from an extracted natural resource. Exchanges involve transaction and transport costs. Copies of finished products may not be made without new materials.

An author or originator comes up with an idea. New ideas come from somewhere, out  of a context of previous thoughts or culture, perhaps. One set of ideas may be fertile ground for many reactions. An idea has content that varies widely  and is suitable for diverse purposes. (It has instrumental value because it can be used to do things)  The originator or others apply ideas and make finished products from them. (A publisher prepares a manuscript into a book.) Ideas may be exchanged in notion, draft, or finished form. A customer buys the idea in finished form and enjoys it. 

Exchanges of ideas in digital form may <only require bandwidth. /Digital copies of ideas may be made <with no loss to the original. /-

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 originator
24

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 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>
25

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
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.
28

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 easyto-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-ofprint 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. <http://arstechnica.com/news.ars/post/20081010-wal-mart-joins-msn-and-yahoo-leaves-drm-key-serversonline.html> Last retrieved 11 November, 2008.
31

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 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.
32 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 reputationbased 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 Press, 2004. 139-141.
34 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. <http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp>.
37

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 topdown 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 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.
41 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. Auerbach, 73.

44

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. <http://www.locusmag.com/Features/2008/11/cory-doctorow-why-i-copyfight.html>
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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 “readwrite” 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,
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Lessig, Lawrence. Remix. New York: Penguin Books, 2008. 82.

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 readonly 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.
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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. Lessig, Remix, 254-256.

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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
Devitt, Amy J. “Generalizing about Genre” College Composition and Communication, Vol.44, No. 4, Dec. 1993. 573.
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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 contenttracking 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 “bync-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
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/
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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/
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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

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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 Collective Action: A Micro-social Theory. New York: Cambridge University, 1993. 1.
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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 York: Cambridge University, 1993. 2-13.
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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.

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.
57

Good Copy, Bad Copy. Dir. Andreas Johnson, Ralf Christensen and Henrik Moltke. 2007. <http://www.goodcopybadcopy.net>.
58

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. Lessig, Remix. 253.

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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. Openlicensed 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 usefulness) connect users with value. See Remix, 61.
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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.

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. 1213.
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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.

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.
66 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. Weber, 7. Weber, 13. Weber, 74.

69

70

71

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. Weber, 47-48.

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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 pseudomarket 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.

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.
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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 fasttrack 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

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.
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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: Yale University Press. 86.
77 78

Solove, 91. Solove, 6.

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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 producerconsumer 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 caseEvangelista, Benny. “RIAA decries drop in CD Sales.” The San Francisco Chronicle. 3 September, 2003. < http://www.sfgate.com/cgibin/article.cgi?file=/chronicle/archive/2003/09/03/BU249534.DTL&type=tech>
80

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. <http://www.goodcopybadcopy.net>.
81

See Goldman’s Wikipedia entry here: http://en.wikipedia.org/wiki/Todd_Goldman (last retrieved 11 November, 2008.)
82

Rosenbaum, S.I. “Artist’s Work Looked Familiar.” St. Petersburg Times. 8 May, 2007. <http://www.sptimes.com/2007/05/08/Tampabay/Artist_s_work_looked_.shtml>
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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. Solove, 95. Solove 95-96. Solove, 37. Solove, 98-99.

85

86

87

88

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. <http://www.nytimes.com/2005/07/31/books/review/31POSNER.html>
89 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. <http://video.google.com/videoplay?docid=280262988255234681&hl=en>
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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
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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 A creator Human creativity Relationships with others (with creator, creator's other works, other people, and other ideas) Life of an idea as development Ideas that form the basis for this one (inspiration) Ideas that will arise from this one (derivatives) The content of an idea Are    Children Parents The ecosystem in which people live out their lives and relationships. Relationships with other humans (with parents, siblings, and others) A child growing into an adult Parents, grandparents, greatgrandparents… Children, grandchildren 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
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.
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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.

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