10 Years of Creative Commons: An Interview with Co-Founder Lawrence Lessig

The interview with Lawrence Lessig featured below was conducted by Markus Beckedahl and John Weitzmann, leaders of the German Creative Commons affiliate organizations in late September and transcribed by Christian Wöhrl. A German version was published yesterday at netzpolitik.org. We are pleased to to publish the English original of the interview and invite others to share it as long as they abide to the terms of the Creative Commons Attribution license.

Lawrence Lessig (photo by By Ed Schipul, CC-BY-SA-2.0)

Lawrence Lessig: Well, there’s a narrow reason which was that at the time we were litigating the Eldred vs. Ashcroft case, and Eric Eldred was skeptical about whether we could win that case. And he said that he wanted to make sure that out of that litigation wouldn’t just come a losing case at the Supreme Court but something that would be a more fundamental foundation to support what we’ve come to call Free Culture. So I began to think that was right and recognized, more importantly, that if we’re ever going to get real change that we would had to build the movement of understanding in people. That wasn’t going to come from the top down, it had to come from the bottom up. So a number of us began to talk about what was the way to craft such a movement and the idea of giving people a simple way to affirm that they don’t believe in either extreme of perfect control or no rights, and what’s the best way to do it. So that’s what launched Creative Commons.

So there were already several Open Content licenses. Why did you develop your own CC licenses and didn’t just support existing FSF licenses, for example? 

Lawrence Lessig: Well, there were two reasons. First, we thought we needed to have a more flexible and wider range of licenses. So that the, you know, like, the Free Document License is a particular version of a free license that might not be appropriate for all kinds of material – number one. But number two, we thought it was really important to understand your own licenses; it was very important to begin to embed an architecture that could be, number one, human-readable, understandable, and, number two, machine-readable, and, number three, at the very bottom, legally enforceable. And none of the other licensing structures that were out there were thinking of this particular mode of policy making, to have to speak three languages at the same time. So that’s what led us to architect this initially.

And it was our commitment from the very beginning, and, you know, we achieved this with the Free Document License and we’re still talking about this with the Free Art License to enable interoperability or portability between free licenses. So our idea was eventually that it didn’t matter which of the free licenses you were in as long as you could move into the equivalent free license that would be CC compatible.

You said CC was meant as an affirmation tool for people who don’t want the default case of copyright, which is “all rights reserved”. So to what extent, do you think, is it a tool and to what extent is it a movement? 

Lawrence Lessig: I think it’s got to be both. It’s got to provide real value so can’t just be a movement, I mean in the sense of real value to people who want to create. So what’s been very important are instances of a kind of innovation ecology that has depended upon free content underneath. There’s some really great apps on Android and iPhone apps, for example, that build on top of the free archive in flickr of Creative Commons licensed work. There’s this one that’s called Haikudeck, which allows you to build slide decks and, like, when you start typing a word it figures out what that word means and pulls related images from flickr, they’re CC-licensed images. And then to get real high-quality images, they look at the camera they’ve used, and if it’s a really great camera they assume it is a really great photograph (laughs). The images they pull are amazing images that get selected for this, that whole application, that whole way of making creativity available would not be possible but for an underlying ecology of this freely licensed work.

So in that sense, it serves a function, same thing that remix music and these remix  sites that depend, that have CC in their DNA: you just cannot license a work without that kind of structure. That’s providing real value in doing your work with it. But on top of that, you know, there is a movement that is people saying to universities, “your work should not be locked up”. And they say, “what are we gonna do?”, and they’re, “well, here is something you can do, you can license under whatever CC license.” And so I think you’ve got to encourage both of them, because there’s still a lot of work to be done to get people to recognize why the default of the copyright regime doesn’t make sense.

So when you founded CC, did you have in mind that it will be an international organization or network-centric organization soon, or did you, in the beginning, just focus on the U.S. and then decided to go global?  

Lawrence Lessig: I, from the very beginning, believed that it had to be internationally focused. And we were extremely fortunate to have found Christiane Asschenfeld, or von Donnersmarck now, who wanted to run the international component, so she launched the office in Berlin and very quickly had a regime for facilitating and porting of the licenses, and very quickly we had a very large international network; and that was critical, because, you know, this depended upon being recognized is an idea of freedom, not an idea that’s an American idea. And so by incorporating this international project, we could get many people active in the project, you know, porting licenses and then they become connected to the community and so actually both of you have been with us from the very beginning and know what that process was like, but in many countries, the process is becoming identified as the central people thinking about this problem in a way that is creative and progressive and then this begins to support also some other activities that happen on top of them.

Talking about the future: We were approached by several players who wanted to have a project on Open Access and on certifying what Open Access is and on building a standard of Open Access for science and research basically. And they said, “you know, there’s this Free Software standard is certified by the Free Software Foundation, and everyone knows what it is: It’s very clear this is Free Software, this is not. But we’re not clear, this is Open Access, or, is it Open Access or is it just sold as Open Access? So could you imagine something, some body, some entity, something that would set a standard for Open Access for all the world just as the FSF does for Free Software? 

Lawrence Lessig: Well, there already is a body that has developed in conjunction with Wikipedia to mark what they call Free Cultural Works. And so certain CC licenses are consistent with the Free Cultural Works label, and certain CC licenses are not consistent with it. And I think that’s valuable to the extent that there are people who want to make that distinction and build on staff that is Free Cultural Works, versus others. That’s very useful. But what I’m not yet convinced of is that wisdom of turning the licensing structure around as a weapon against people who are not licensing material according to the way that some people believe it ought to be licensed. There’s a wide diversity of creators who create for very different reasons and under very different constraints.

For example, one of the first films that we got was a film by Davis Guggenheim who did “Inconvenient Truth” and “Waiting for Superman”. This is a film about education, and it was a film taken in fact in a school, in public schools. So there are many shots of kids in this film. And he wanted to license it under CC license so that people could get access to the film. But he had what he felt was a moral obligation to those kids, that their images would not be used in a way that was inconsistent with the integrity of the way that these kids were being represented. So he chose a non-derivate license (Anm.: CC-Lizenzelement ND) for this, because it was important for him to protect the people he was displaying. That seems to me completely appropriate even though it’s inconsistent with what a free cultural license would say. So, I think that rather than imagining that we can, that all the world is just like free software, we have to recognize the diversity and try to push people to the direction of freedom to make something consistent with their values and the objectives of their particular kind of culture production.

We always have the debate with Wikipedians that only the licenses that allow commercial use are free culture and the rest should be forgotten. We also have the problem of the definition of what is non-commercial (NC-license module). How would you define non-commercial, is the first question. And second, would you do it the same way, back in time?  

Lawrence Lessig: Well, I think, you know, non-commercial works (and that’s not quite the way the license is written but what we call non-commercial) was a proxy for a cultural understanding. And the cultural understanding was: I’m sharing with you, and it’s completely appropriate for you to take my stuff that I’m sharing with you but it would be really not on for you to take the stuff and start selling it to somebody else, right? I mean that just is not the way in which this cultural sharing is being expressed. There’s no good word for describing that line, and that line feels different in different contexts. But I completely understand why, you know, you make a CD like this with lots of freely licensed works, I completely understand why you license it in a non-commercial share-alike way, because the idea that Sony could take a soundtrack from this and put it into a movie and make money off of it seems to me, you know, I understand why somebody would say, “I don’t want anyone to do this”. No, I license all my stuff completely freely, I would be happy if somebody took my stuff and turned it into a movie (laughs). But I understand. I don’t think that the creator is less of a creator, is less of somebody committed to Free Culture, if she says, “if that person wants to profit from my work, she should come talk to me about it”. So, I wish we had a clearer way to mark the line between that cultural understanding of sharing and the appropriate commercial interaction. And we’re thinking, we’re still pushing for mechanisms that might make that negotiation a simpler one to understand. But I remain committed to the idea that there’s a division there and that people would feel exploited if they’re sharing material then turned in to the opportunity for somebody independent of them to make money in a way that wouldn’t necessarily come back to the original creator.

CC has its 10th birthday now. What are the future developments? What are the strategic goals for the organization or the licenses? Will there be more licenses, or will it be more focused on several topics? 

Lawrence Lessig: My hope is – and I’m not management anymore, so I can’t promise – my hope is that there’s a very interesting new hack that we’re talking about. It’s a hack to bring more people into the licensing structure by giving them a more effective way to enforce their rights: So you can imagine even a professional photographer who would want to use this license, so that they’re happy to give away the non-commercial rights to their work in exchange for being inside of an enforcement scheme, which is more efficient and more effective than the background law enforcement regime is. So we’re working on this hack to facilitate that. And I think that could be a great opportunity because what this is doing or what in principle it could do is to improve the efficiency of copyright law generally in the context of also making works available more freely under CC license.

I also think that we’re going to be redefining, and I hope with Wikipedia, an objective to feed the Commons, to get apps like games and apps where people can be contributing to the Commons and raiding material from the Commons, but just to enrich the Commons with material so that people can more easily draw upon it and build upon it. So this idea of feeding and curating the Commons, I think, becomes a really critical thing that we need to facilitate better than we have done so far. And I hope those are the two directions that CC pushes.

Are you able to name three very nice projects you really liked, or is it to hard to find three projects, out of the CC world, where you thought, wow, this amazing how some projects use CC licenses to do something new and incredible? 

Lawrence Lessig: Well, it’s too hard to name just three new and incredible…

…you can also mention ten… 

Lawrence Lessig: There’s also some remix projects that we have seen that have created competition in the context of CC licensed works. And I always find these businesses that find ways to build on top of this kind of creative expression extremely encouraging, because I think it supports the idea of an ecology and other things. So I was talking about the Haikudesk project, for example, and projects like Al-Jazeera, taking and releasing all of its work of Palestinian film under CC-BY license, the freest license, to facilitate access to this material so documentary films or television news broadcasts can more easily get access to real information on what’s going on in Palestine. I thought that was really exciting. But nothing can top the significance of Wikipedia deciding that this is the infrastructure platform that they would build Wikipedia on. So it took many years to negotiate the transition there, and it took certain humility and wisdom with Richard Stallman to permit the migration to occur. But I think that this solidifies the sense in which this is a brand for building free culture, and I think that’s what’s going to guarantee its ongoing salience and success.

When we see the free culture movement, how important is net neutrality for the development of this new kind of movement and cultural creativity? 

Lawrence Lessig: Well, my view is: Net neutrality is critical, not just for free culture. Free culture depends upon it. Maybe it depends upon it more, I don’t know, would have to think about metrics here, but it depends upon it. But not just free culture depends upon it. So I think this is a separate but independent value, which we have to worry about, in addition to worrying about the mix of control of the content there. Benkler gave us, and I stole it in the context of my book “The Future of Ideas”, the conception of this as a layered architecture. I simplyfied it down to three layers and at each of these layers you imagine a free and a proprietary component, and the essential story is that you need to assure the balance – at least – in each of these layers, and ideally maximize the free in each of these layers. And so I think that network neutrality is operating at a different layer than free culture is operating, but these work together and depend upon each other.