Authors Prodromos Tsiavos
License CC-BY-2.0
Cultivating Creative Commons:
From Creative Regulation to Regulatory
Commons
Prodromos Tsiavos
Department of Management
Information Systems and Innovation Group
London School of Economics and Political Science
Thesis submitted for the degree of Doctor of Philosophy
October 2007
1
Declaration
The research presented in this thesis was conducted by Prodromos Tsiavos.
This work is licensed under the Creative Commons Attribution 2.0 UK: England &
Wales License. To view a copy of this licence, visit
http://creativecommons.org/licenses/by/2.0/uk/ or send a letter to Creative Commons,
171 Second Street, Suite 300, San Francisco, California 94105, USA.
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Cultivating Creative Commons:
From Creative Regulation to Regulatory Commons
Abstract
This thesis explores and explains the development of the Creative Commons (CC) as an
alternative to mainstream copyright protection. It argues that the distinctive
characteristics of CC as a license based, configurable form of meta–regulation can be
explained by consideration of the disciplinary background of the movement’s founder
(Lawrence Lessig) and as a consequence of the particular mode of development it
undertook (e–mail discussions as commonly used in the arena of software development
rather than traditional legal discussions) as well as the influence of a variety of pre-
existing regulatory forms.
The second part of the research reviews the inputs from multiple existing regulatory
structures such as the Free Software Foundation and the Open Content movement, and
de-constructs the process by which the CC is developed in practice. The thesis analyzes
the trajectory of CC from a licensing project to a political project, the structural
elements of the CC licences and the decision making process of their creation and
development.
This analysis helps to explain the apparent inconsistencies that have been expressed
about the CC project and shows how Lessig’s perspectives on regulation and meaning
construction contribute to the empowerment of the creator and the attempt to provide
regulatory tools instead of regulatory solutions.
The thesis argues that imbalances in the existing Copyright system are symptoms of
deeper structural problems of distantiation of the regulated subject from the process of
regulation construction. CC therefore becomes an effort to increase access to the
regulatory process and as a result ignites the creation of the Commons. Instead of the
regulation to be enforcing its normative content on the creative practices over the
Internet, the CC approach allows the reverse to happen. The intellectual or creative
commons are thus achieved as a secondary result of the ability to access the regulatory
commons.
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Acknowledgements
My supervisor Dr. Edgar Whitley is the person that has most consistently supported me
throughout the process of completing this thesis. Edgar has always believed in my ideas,
and showed faith in my research decisions. We have worked really hard together on this
thesis and if it is completed today this is due to his commitment to our common
objective and his ruthless but always constructive comments on my work. Thank you
Edgar.
Claudio Ciborra both as a person and as an academic has exercised a tremendous
influence on my work. I feel privileged I had the opportunity to meet him in the LSE
Information Systems department and very sad that he is not with us any more. Claudio
was the person that introduced me to Ole Hanseth, another very special academic who
greatly contributed to this thesis with his comments and the work we did together at
Oslo University. The idea of working with mailing lists, the cultivation idea and the
comparison between technical standards and legal modalities of regulation, all come
from my collaboration with Claudio and Ole. I would specially like to thank Chrisanthi
Avgerou for her comments on some of my papers in the period 2002-2003 that made me
rethink my research direction and crystallize my research focus. The discussions I had
with Chrisanthi in 2005 and 2006 have been invaluable for realizing what I wanted and
what I did not want to do in my relation with academia, consulting and activism.
I am also grateful to Larry Lessig and Jamie Boyle for discussing with me their papers
and their work, though having an exceptionally hectic schedule. The insights I got both
in relation to the operation of the CC project and their own writings would not be
possible had they not been so accessible and open about their research. I would also like
to thank a series of other staff and volunteers from the CC project such as Christiane
Aschenfeldt, Heather Ford, Mia Garlick, Diane Cambel and Tom Medak for providing
crucial information on the workings of the CC project. I would also like to thank Elkin
Koren for the discussions we had and the interview I got from her regarding her critique
of the CC project that greatly contributed to this thesis.
The Information Systems department at the LSE is one of the most vibrant intellectual
environments I have ever encountered and I would like to thank all the members of the
staff and fellow PhD students with whom I had the opportunity to discuss aspects of my
work during my studies at the LSE. I would like to specially thank Dr. Steve Smithson,
a very good friend and lecturer that greatly supported me particularly during my first
year at the LSE.
The discussions I had with professor Dionysia Kallinikou and Anne Barron have greatly
informed my Copyright understanding and I am indebted to both of them for their
assistance. I would also like to help Mr. Jacques Bus and Philippe Aigrain from the
Information Society Directorate General in the European Commission for introducing
me to the idea of Creative Commons during my days in Brussels and prof. Eric
Brousseau for the discussions we had in Paris regarding his work on regulation,
innovation and Intellectual Property Rights. Finally, I would like to thank Maja van der
Velden for giving me the most useful advice regarding the PhD process at its most
crucial moment.
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I would specially like to thank Theodora Papadimitriou, one of the brightest young
constitutional lawyers and academics, for the lengthy discussions we had regarding
issues of regulation and constitutionalism and for greatly assisting me during the final
stages of my writing with the fixation of my empirical data. I also sincerely hope she
quits smoking one day.
Prof. Ian Angell, Dr. Yannis Avgerinos, Dr. Ashutosh Khanna and Yannis Boudouris
have supported me in several occasions during the writing of this thesis and I will
always be indebted to them for their friendship and faith in my work. I would also like
to thank Victoria Koukouzel-Kyritsi for all her support during our time in London and
Theodora Gkatzoflia for her support during the last part of the thesis writing. Finally, I
would like to thank Caterina Drogiti whose insistence on filling in the LSE application
forms a sunny day in front of Athens University some years ago started this journey.
During the last one year Dr. Vassia Matzana has helped me enormously both
academically and personally transferring her recent PhD experience and giving me
practical advice and emotional support on a day by day basis. The writing of this thesis
would not have been possible without Vassia and I would genuinely like to thank her
for everything she has done for me.
I would finally like to specially thank Professor Father Nikolaos Ioannides, Father Peter
Mueller, my parents, Konstantinos and Aggeliki, my brother Vaios and my sister
Ioanna, as well as Annoula and Giagia Dionysia who were the ones that went with me
through the adversities of writing the PhD thesis often compromising their personal
time and wishes and it is to them with all my love that this thesis is dedicated.
This thesis has been funded by the Greek State Scholarships Foundation and supervised
on its behalf by Professor Dionysia Kallinikou. I am indebted to both for their financial
and moral support.
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Contents
DECLARATION........................................................................................................................................... 2
ABSTRACT ................................................................................................................................................... 3
ACKNOWLEDGEMENTS.......................................................................................................................... 4
CONTENTS ................................................................................................................................................... 6
LIST OF FIGURES ...................................................................................................................................... 9
LIST OF ACRONYMS............................................................................................................................... 10
CHAPTER ONE INTRODUCTION................................................................................................ 12
1.1 INTRODUCTION .................................................................................................................................... 12
1.2 KEY TERMS ......................................................................................................................................... 14
1.3 RESEARCH OVERVIEW AND THESIS STRUCTURE ................................................................................. 16
1.4. CONCLUSION ...................................................................................................................................... 23
CHAPTER TWO OVERVIEW AND CRITIQUE OF THE CREATIVE COMMONS PROJECT
....................................................................................................................................................................... 27
2. INTRODUCTION ...................................................................................................................................... 27
2.1 AN OVERVIEW OF THE CREATIVE COMMONS PROJECT ....................................................................... 28
2.2 WHO IS DOING THE CRITIQUE AND IN WHICH CONTEXT (ACADEMIC, PRACTITIONERS, COMMUNITY);
WHY TO FOCUS ON ELKIN-KOREN'S WORK ............................................................................................... 35
2.3 ONTOLOGY OF THE CRITIQUE OF THE CC PROJECT ............................................................................ 38
2.4 ELKIN-KOREN'S WORK AND HOW IT RELATES TO THE CURRENT STUDY ............................................. 40
2.5 THE IMAGE OF THE CC PROJECT IN ELKIN-KOREN'S WORK ................................................................ 41
2.6 BASIC FEATURES OF ELKIN-KOREN'S CRITIQUE OF THE CC PROJECT: IDEOLOGICAL FUZZINESS AND
CHOICE OF LICENCES AS THE PREFERRED INSTRUMENT FOR SUPPORTING THE COMMONS ....................... 42
2.7 PROBLEMS WITH CC MEANING CONSTRUCTION STRATEGY AS A RESULT OF IDEOLOGICAL FUZZINESS
................................................................................................................................................................... 44
2.8 LINKING IDEOLOGICAL FUZZINESS AND THE CC LICENSING PROBLEM .............................................. 44
2.8.1 Objections to licensing as a tool for enhancing the Commons ................................................. 47
2.8.2. Objecting to licences as a tool altogether ................................................................................ 47
2.8.3 Objections to the strategy of having more than one licences.................................................... 50
2.8.4. Need for a common principle governing all licences ............................................................... 51
2.9 CONCLUSION ....................................................................................................................................... 53
CHAPTER THREE CRITICAL LITERATURE REVIEW ............................................................ 55
3. INTRODUCTION ...................................................................................................................................... 55
3.1 PATTERNS OF COPYRIGHT AND DIGITAL TECHNOLOGIES INTERACTION ............................................ 56
3.2 SECONDARY EFFECTS OF TECHNOLOGICAL CHANGE: IMBALANCES IN THE ALLOCATION OF RIGHTS. 65
3.3 INTELLECTUAL PROPERTY RIGHTS ENVIRONMENTALISM AND THE COMMONS ................................. 68
3.4 COPYRIGHT AND THE COMMONS AS CONSTRUCTED ENTITIES ............................................................ 70
3.4.1 Early conceptualizations of the Commons................................................................................. 73
3.4.2 FLOSS as a paradigm for the Commons ................................................................................... 75
3.5 THREE DEFINITIONS FOR THE INTELLECTUAL COMMONS AND THE PUBLIC DOMAIN ........................ 78
3.6 CONCLUSION ....................................................................................................................................... 82
CHAPTER FOUR CONCEPTUAL FRAMEWORK....................................................................... 86
4. INTRODUCTION ...................................................................................................................................... 86
4.1 QUESTIONS ON THE ISSUE OF CHANGE ................................................................................................ 88
4.1.1 Social Meaning and responses to change.................................................................................. 91
4.1.2 Context and Meaning Construction: Provoking Change .......................................................... 94
4.1.3 Establishing associations and changing the existing ones: the birth of regulation and the
mechanisms for resolving regulatory problems.................................................................................. 99
4.1.4 Techniques for the construction of Associations ..................................................................... 102
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4.2 INTERNALIZATION, IMMEDIACY AND PLASTICITY ............................................................................ 106
4.3 FOUR MODALITIES OF REGULATION ................................................................................................. 108
4.4 CONSTRUCTING CYBERSPACE REGULATION ..................................................................................... 111
4.4.1 The locus of regulatory building over Cyberspace ................................................................. 115
4.4.2 Private Ordering, Free Open Source Software and the Commons......................................... 119
4.4.3 The regulatory dimension of the concept of commons ............................................................ 124
4.5 POSITIONING LESSIG’S WORK IN THE RELEVANT LITERATURE ......................................................... 128
4.5.1 Positioning Lessig’s Work within Regulatory Theory............................................................. 130
4.5.2 Understanding Lessig’s regulatory approach with respect to FLOSS development.............. 150
4.5.3 From FLOSS to Standards and Information Infrastructures .................................................. 161
4.6 CONCLUSION ..................................................................................................................................... 171
CHAPTER FIVE METHODOLOGY............................................................................................. 176
5. INTRODUCTION .................................................................................................................................... 176
5.1 RESEARCH DESIGN ............................................................................................................................ 179
5.1.1 Links between ANT and Lessig’s work .................................................................................... 181
5.1.2 Implications of ANT and Lessig’s conceptual framework for the data collection and analysis
............................................................................................................................................................ 183
5.2 DETAILED DATA COLLECTION AND ANALYSIS .................................................................................. 184
5.2.1. Data Collection ....................................................................................................................... 187
5.2.2. Data Analysis........................................................................................................................... 191
5.3 CONCLUSION ..................................................................................................................................... 205
CHAPTER SIX PRESENTATION AND ANALYSIS OF THE CREATIVE COMMONS
PROJECT 207
6. INTRODUCTION .................................................................................................................................... 207
6.1. THE CC PROJECT AND ITS WORLDVIEW ........................................................................................... 207
6.2 CREATIVE REGULATION: MEANS FOR ACHIEVING THE OBJECTIVES OF THE CC PROJECT ................ 219
6.3 ANALYZING THE OPERATION OF THE CC LICENCES .......................................................................... 228
6.4 ANALYZING PARTICIPATION AND INTERACTIONS ............................................................................ 237
6.4.1 Participation patterns .............................................................................................................. 237
6.4.2 Thematic Representation Patterns ........................................................................................... 244
6.4.3 COMMONS AS IN COMMON LAW: UNDERSTANDING PARTICIPATION AND REPRESENTATION IN THE
CC PROJECT............................................................................................................................................. 256
6.4.4 Interaction patterns .................................................................................................................. 261
6.4.5 Cultivating the regulatory commons: Static and dynamic cultivators/ controllers in the CC
project ................................................................................................................................................ 270
6.5. CONCLUSION .................................................................................................................................... 275
CHAPTER SEVEN DISCUSSION OF THE CC PROJECT .......................................................... 276
7. INTRODUCTION .................................................................................................................................... 276
7.1 COMMONS AND THEIR REGULATORY CONDITIONS............................................................................ 277
7.1.1. Regulatory distantiation in the language of association construction................................... 279
7.1.2. Modalities of Regulation and Regulatory features; Native and Exotic Regulatory Forms... 281
7.1.3. An end-to-end model for regulation development: the regulatory commons ........................ 283
7.2 THE CC PROJECT AS A CONSTRUCTION-CULTIVATION PROJECT ....................................................... 286
7.2.1 Seeding...................................................................................................................................... 287
7.2.2 Reverse internalization and cultivation ................................................................................... 290
7.2.3 Preservation of creative practices/ native regulatory forms................................................... 297
7.2.4 Preservation of legislative aspects........................................................................................... 301
7.2.5. From Regulatory to Creative Commons: the political dimension of the CC project ............ 308
7.3 CONCLUSION ..................................................................................................................................... 318
CHAPTER EIGHT CONCLUSION.................................................................................................. 321
8. INTRODUCTION .................................................................................................................................... 321
8.1. RESEARCH OVERVIEW ..................................................................................................................... 321
8.2. CORE FINDINGS AND CONTRIBUTIONS............................................................................................. 324
8.3 LIMITATIONS ..................................................................................................................................... 335
8.4 AVENUES FOR FURTHER RESEARCH ................................................................................................. 337
8.5 CONCLUSION ..................................................................................................................................... 339
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APPENDIX I CC CRITIQUE TABLE.............................................................................................. 342
APPENDIX II LIST OF CC PROJECT FEATURES.................................................................. 343
APPENDIX III INTERACTION PATTERN EXAMPLE ............................................................ 344
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List of Figures
2.1 Types of CC hosting institutions per country
2.2 Creative Commons International national project launches per month (2004-
2006)
2.3 A diagrammatic representation of the relationship between Commons Deed,
Legal Code and Digital Code
5.1 Layer Analysis of the “cc licenses” mailing list thematic representation
6.1 A diagrammatic representation of the operation of the CC licences basic
template
6.2 A diagrammatic representation of the operation of the ShareAlike CC Licence
Element
6.3 Distribution of postings in the population of active participants over the “cc
licenses” mailing list
6.4 Persistence distribution in the population of active participants over the “cc
licenses” mailing list
6.5 Thread initiation distribution in the population of active participants over the
“cc licenses” mailing list
6.6 Number of postings per active participant in the discussions on v.3.0 of the CC
licences
6.7 Popularity of themes discussed in the “cc licenses” mailing list
6.8 Distribution percentage of themes discussed in the “cc licenses” mailing list
6.9 Implicit sub-threads in the CC v.3.0 discussions
6.10 Implicit super-threads in the early “cc licenses” mailing list period
6.11 Orphan threads example
6.12 Q&A threads example
6.13 Implicit Q&A threads example
6.14 Long line thread example
6.15 Tree-like thread example
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List of Acronyms
ANT Actor Network Theory
BY Attribution
e2e End to End
CC Creative Commons
CLS Critical Legal Studies
CBPP Commons Based Peer Production
DFSG Debian Free Software Guidelines
DMCA Digital Millennium Copyright Act
DVD Digital Versatile Disc or Digital Video Disc
EUCD European Union Copyright Directive (2001/29/EC)
EULA End User Licence Agreement
FAQ Frequently Asked Questions
FDL Free Documentation Licence
FLOSS Free Libre Open Source Software
FSF Free Software Foundation
GFDL GNU Free Documentation Licence
GNU GNU is Not Unix
GPL General Public Licence
IS Information Systems
IETF Internet Engineering Task Force
IP Internet Protocol
IPR Intellectual Property Rights
IPRED Intellectual Property Rights Enforcement Directive (2004/48/EC)
IPRED2 Intellectual Property Rights Enforcement Directive 2 {SEC(2005)848}
LDP Linux Documentation Project
NC Non Commercial
ND Non Derivative
OPL Open Publication Licence
PD Public Domain
p2p Peer to Peer
RMS Richard Mathew Stallman
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Q&A Question and Answer
SA Share Alike
VHS Video Home System
11
Chapter One Introduction
1.1 Introduction
“If you want to know about something serious, it sometimes helps to ask about it
in a context where it doesn't matter. Where it doesn't matter, prejudices are more
easily put aside, and when it is something very serious, prejudices abound.”
(Lessig, 1996c p. 839)
This quote comes from one of Lessig’s least known works, a book review on
constitutional amendment written in the mid 1990s. It is perhaps the most accurate
description of the character of both his academic work and his contribution to the
Creative Commons (CC) project, and is certainly the most appropriate way to introduce
this research.
The CC project offers a solution to the problem of not being able to reuse material for
creative reasons due to Copyright restrictions (Creative Commons, 2006a). In this
context, CC may be seen as an effort to mitigate the extremities of the current Copyright
system by establishing a voluntary system of reserving only some Copyrights (Brown,
Paharia, Junell and Walker, 2002). CC implements such a solution through a series of
standard, free of cost, public licences that are complemented by meta-data allowing the
easy identification and reuse of CC licensed works (Creative Commons, 2004a) (section
6.1).
While the aforementioned description of the CC project constitutes a valid first
approach to the CC phenomenon, this thesis also explores about another issue, perhaps
of a more fundamental nature: In the area of Copyright we witness a steady pattern of
what is described in this research as the regulatory distantiation phenomenon (section
3.6): increasingly fewer and fewer actors have the ability, practical and legal, to provide
input to the formation of regulation that involves more and more people; while
regulation becomes more pervasive, access to its formation becomes more exclusive.
We illustrate this aspect by examining the interaction between Copyright and
Technology (chapter 3) as well as by conducting a critical review of Lessig’s early work
12
on regulation and the Internet (chapter 4) and a positioning of his wok within regulatory
theory, FLOSS research and Information Infrastructures design (sections 4.5.1-4.5.3).
This alienation from the regulatory means of production is at the crux of the Copyright-
technology interaction problem (section 3.1). The eradication of the Commons (section
3.3) and the exclusion of a class of new creators from the use of a series of creative
resources (section 3.2) are, to the author of this thesis, the symptoms of the greater
problem of eradication of the regulatory commons (sections 4.4.1 to 4.4.2), of the
exclusion of this new class of creators from the regulatory formation process. It is in the
context of Copyright and CC that the question of how to overcome regulatory
distantiation is posed (section 4.4.3); not because CC or Copyright lack seriousness, as
Lessig’s aforementioned quote may lead the reader to conclude, but rather because of
two more practical reasons: first, because the investigation of a very specific area in
which the distantiation problem occurs allows its comprehensive analysis; and second,
because the CC project provides a good initial model for how to solve the distantiation
problem.
Viewing the CC project as one that solely and directly seeks to establish a creative
commons, though appealing in its simplicity, it raises serious consistency problems,
most of which have been identified by the relevant critique. Chapter two is exclusively
devoted to a brief presentation of the CC and its critique. We present the basic
constituent parts of the CC critique and explain why an alternative to the mainstream
understanding of CC is required.
This thesis argues that much of the confusion regarding the level of operation of the CC
project derives from the popularity of Lessig’s later work that focuses on the
establishment of the creative rather than the regulatory commons. Chapter four attempts
to shed light to most of Lessig’s earlier work illustrating his approach to the regulatory
distantiation problem and the possible solutions he suggests (sections 4.4 onwards).
This early period of Lessig’s work [e.g. (Lai, 1999; Lessig, 1989; 1993; 1995c; 1995d;
1996b)] is also informative of the ways in which we could construct a vocabulary for
describing the regulatory phenomenon as an association construction effort (sections
4.1-4.3). A combination of Lessig’s model of four modalities of regulation (Lessig,
1998d) (section 4.3) with the language of associations invites the establishment of links
13
with Actor Network Theory (ANT) and the “sociology of associations” (Latour, 2005)
(sections 5.1.1-5.1.2) and frames the epistemological approach of this research. Sections
4.5.1 to 4.5.3 further refine our understanding of Lessig’s work by positioning it within
the relevant regulatory theory, FLOSS research and aspects from the Information
Infrastructure literature. In chapter five we deal in detail with the ways in which
Lessig’s association construction-cultivation model could define the data collection
(5.2.1.) and analysis (section 5.2.2) techniques that are used for the investigation of our
basic research questions.
The analysis of the CC project that takes place in chapter six gives us an opportunity to
explore how CC employs a series of mechanisms in order to cultivate associations and
express them in the formal regulatory instruments of the CC licences (sections 6.3, 6.4.3
and 6.4.5). By focusing on the discussions over the main CC mailing list, the “cc
licenses” mailing list, (sections 6.4.1, 6.4.2 and 6.4.4) we explore how CC resolves the
regulatory distantiation problem by emphasizing the process of absorbing patterns of
creative behaviour rather than trying to impose them upon the population of secondary
creators and users.
In chapter seven we discuss the various aspects of the association construction-
cultivation model the CC project is based upon (section 7.2). Lessig’s conceptual model
of association construction (Lessig, 1995c; 1996b) presented in chapter four (section
4.1.4) and positioned within the relevant literature in sections 4.5.1 to 4.5.3 is extended
and enriched with the results from the analysis conducted in chapter six. The discussion
concludes with a presentation of the political aspects of the CC project (6.5) and the
way in which the latter produces the creative commons through a process of developing
the regulatory commons (6.4.5).
In the rest of this chapter the starting points of this research are presented. First, key
terms are presented and briefly explained (section 1.2). A detailed overview of the
thesis structure and the basic issues appearing in each chapter follows (section 1.3). The
introduction concludes with the basic contributions of this research.
1.2 Key Terms
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There is a series of key terms important for the whole of the thesis that needs to be
clarified at the outset of this research. The first one relates to the CC project which is
used as ‘CC’ or ‘Creative Commons’ when it is to describe the specific project initiated
by Lawrence Lessig (section 6.1) and as ‘creative commons’ when it is to denote
common creative resources every actor has access to in non-discriminatory terms
(sections 3.4.1). The word ‘Commons’ denotes all forms of resources that are available
in non discriminatory terms and is influenced by Lessig’s definition of the Commons
(Lessig, 2001b) as quoted by Boyle (1997a) as described in section 3.5.
The terms Moglen’s Law (1997; 1999), Commons Based Peer Production (CBPP) or
end-to-end or the ‘stupid network’ are taken from the work of Benkler (2002), Saltzer
(Saltzer, Reed and Clark, 1984) and Isenberg (1997) quoted by Lessig (2001b)
respectively and are used in the same way as the term ‘Commons’; they are explained in
greater detail in chapters three (section 3.5), four (sections 4.4.2 and 4.4.3) and seven
(section 7.2.5). The term ‘regulatory commons’ is, therefore, used in order to describe a
form of regulation everyone is able to contribute to in non-discriminatory terms (section
6.4.5).
The term Actor is used in order to express the Actor-Network in the sense used in
Latour’s work (2005) and described in detail in chapter five (sections 5.1.1 and 5.1.2).
Another set of terms is that of ‘classic Copyright project’ or ‘proprietary Copyright’;
both are expressive of the most dominant models of exploitation of Copyrights that are
based on an approach advocating a reservation of all proprietary rights by the creator
and offering only limited use rights to the user of the work (section 3.1).
The notion of the secondary creator is used in order to denote the creator that is using
copyrighted material in order to produce new creative works (sections 3.2 and 3.3).
All other terms, particularly the ones related to Lessig’s work or Actor Network Theory
are explained in greater detail in chapters four and five respectively. Concepts related to
regulatory theory are analysed in chapter sections 4.5.1 to 4.5.3. The new concepts
developed as the result of the analysis are illustrated in chapters six and seven.
15
1.3 Research overview and thesis structure
This thesis presents interdisciplinary research exploring the ways in which the CC
project may be approached as a response to the main issues Copyright law faces in its
interaction with digital technology (section 3.1). It argues that the CC project is about
something more serious –or at least of greater societal impact- than simply supporting
the public domain. It argues that CC is primarily a project aiming at increasing access to
the formation of regulatory resources and only at a second level supporting the creative
commons.
The thesis further argues that Copyright-technology problems may be expressed in
terms of the costs of constructing and enforcing regulation (section 4.1.2); that CC is a
less expensive regulatory approach (sections 7.1.1-7.2.5); and that CC manages to
support creativity and innovation by following a regulatory strategy that brings it closer
to contemporary creative practices (section 7.2.3). The CC project is understood as an
effort to create the regulatory commons (section 6.4.5), a form of regulation that
eradicates the distance between the production and enforcement of regulation. The
creative commons is produced as a direct result of this effort to construct the regulatory
commons (section 7.2.5): if the current, technology-driven creative practices are closer
to a creative commons-type of regulation, by allowing them to be expressed through a
regulatory commons heuristic, the CC project supports the establishment of a creative
commons (section 7.1.2).
The Creative Commons project offers a range of standard, cost-free licences supporting
the sharing, re-use and remix of material other than computer programs (sections 6.1 to
6.3). It has gradually become the most popular open content licensing scheme
worldwide (Creative Commons, 2006h). Creative Commons has been equally linked to
the efforts for the enrichment of the Public Domain, the fight against Copyright’s
extremism and is related to the Free Software movement (sections 6.1 and 6.2).
However, it has also been criticized as being too reactive and not really forward looking
(Berry and Moss, 2005), as implicitly supporting the existing Copyright regime (Elkin-
Koren, 2006a) or as prone to eradicate the income of the creators (Orlowsky, 2007)
(Dvorak, 2005) and a means to introduce new intermediaries in the creative industry
16
(Carroll, 2006). The most wide spread critique is that CC has a fuzzy ideology which
cannot support the Commons (section 2.6) and that the CC licences are not the most
appropriate means for achieving a Commons (Elkin-Koren, 2005) (sections 2.8.1 to
2.8.4). Chapter two deals in detail with this critique presenting its basic constituent parts
and the way in which it allows a first approach to the CC project.
The broader research objective of this thesis could be seen as an effort to investigate the
nature of the CC project. The CC rhetoric (seen mainly in chapter 6 and section 2.1)
presents CC mainly as a licensing project aiming at the promotion of sharing, reusing
and remixing of material. However, the CC critique (presented in Ch.2) views the
strategy and means adopted by CC as problematic for a variety of reasons: It appears as
having an ideology that is -if not libertarian- at least fuzzy; it supports the autonomy of
the creator, and potentially proprietary solutions; it provides more than one mutually
incompatible licences and hence fragments the commons.
As this thesis argues and the CC critique indicates, CC is a response to the Copyright
problems but for a series of reasons it is hard to view it solely as an effort to support the
creative commons; it is more likely to be seen as an effort to establish a regulatory
commons for Copyrights.
Chapter three provides a first explanation why this is the case. A critical review of the
relevant literature reveals that the Copyright-Technology interaction has created two
classes of problems: the first, and most widely known, relates to the disturbance of the
balance between the existing rights holders and users or future rights holders.
Copyright’s underlying economic model of incentives does not seem to be the only
model for supporting creativity. The Commons Based Peer Production model arguing
that on the Internet it is enough to remove obstacles rather than to provide the incentives
for creativity to flourish, and the numerous real-life cases (Free/ Libre/ Open Source
Software development being the predominant class of such examples) illustrate that the
existing Copyright system is problematic in terms of its regulatory content. However, it
still remains unaltered.
The second class of problems that is implied but not thoroughly examined in the
relevant literature, provides an answer to the question of why the Copyright system
17
remains as it is despite the apparent problems it suffers from: while the application of
Copyright law involves increasingly more people, the decision making and participation
to the formation of its content remains an affair of increasingly less stakeholders. This is
what in this thesis is described as the distantiation phenomenon. It is this phenomenon
that constitutes the cause of the imbalanced rights allocation, which is a symptom of
rather than the actual problem Copyright currently faces. The CC project as a response
to Copyright law problems seeks to combat this distantiation and in a second level the
imbalance in the allocation of rights.
The presentation of Lessig’s work in chapter four allows us to understand the way in
which regulation construction and enforcement may be approached in order to resolve
the distantiation problem. Lessig’s work in the last two decades appears to vary
thematically: from US constitutional law and meaning to Cyber-regulation and IPR
issues. However, there is a constant problematic appearing in all Lessig’s research: the
investigation of the phenomenon of contextual change and construction and the
regulatory responses to such changes. Stated differently, Lessig is interested in the way
in which social agreement on regulatory instruments may be encapsulated in different
forms of regulation and how we may ensure that such social consensus still exists in the
face of fundamental contextual changes. Cyber-regulation issues constituted a great area
of interest for Lessig in the 2nd half of the 1990s allowing him to explore multi-source
regulatory environments. Hence, he developed the four modalities of regulation model
and sought to discover how social consensus, and hence legitimization, could be
achieved in environments where classic legal meta-regulators like the constitution
systematically fail to play their designed role.
For that reason Lessig explored regulation as a form of association construction
mechanism with particular costs attached to its various forms. It was in that period of
his work that FLOSS caught Lessig’s attention as a form of meta-regulator that allowed
non-discriminatory access to the production of an otherwise private form of regulation,
i.e. technology. Investigating in more detail the phenomenon of regulatory privatization
(similar to the distantiation phenomenon) Lessig explores the issue of zoning in
Cyberspace and become interested in the non-discriminatory access to creative
resources. The latter part of his work, written in a more popular fashion, and being
emphasized in the rhetoric of the CC project, has elevated Lessig to a world-popular-
18
figure status but has also been the cause of much misconception of his work and the CC
project, something the CC critique has clearly indicated.
Chapter four thus concludes that Lessig’s work is about ensuring non-discriminatory
access to regulatory resources construction and that the CC project is a mechanism for
achieving such a result.
Lessig’s conceptual framework in relation to the regulatory phenomenon may be
associated with three streams of contemporary literature, that is, regulatory theory,
FLOSS research and the Information Infrastructures literature. Similarly to Lessig’s
work, regulation theory views a gradual shift from a state driven, hierarchical Command
and Control regulatory model, to one being privately driven, heterarchical and
decentered. This type of regulatory understanding gives particular emphasis to
governance rather than government and views regulation as something embedded in
daily routines and technologies. In such a regulatory environment the main concerns are
similar to the ones raised by Lessig: how it is possible to increase participation of the
regulatee to the formation of the regulation and ensure that the same values found in
public regulatory forms will be found in these new hybrid regulatory forms.
The FLOSS research features a series of characteristics that are also found in Lessig’s
work. In addition, FLOSS development resembles the way of developing the CC
licences. A deeper reading of the relevant literature reveals that FLOSS has its roots in
open standards development, that is, the development of essentially regulatory
instruments. With the use of the FLOSS model for the development of another
regulatory instrument, such as the CC licence, a circle is closed. What the FLOSS
literature suggests is that we gradually shift our interest from the operation of the
licences to the process of their creation in the same way as regulatory theory moves
from the regulatory content to the regulatory production process.
Finally, the Information Infrastructures literature, influenced by Actor Network Theory
concepts adopts an ontology for technology that places particular emphasis on its
regulatory elements similarly to Lessig’s approach. More importantly, this stream of
literature emphasizes that the development of Information Infrastructures has to follow
a model of cultivation rather than construction. This model is close to the models
19
suggested by regulatory theory, to Lessig’s theoretical approach and the actual
development of the CC project.
Chapter five explains why the thesis follows a critical approach: it studies a
contemporary phenomenon like the CC project and seeks to present an alternative to the
mainstream understanding of CC’s basic operation. It is also compatible with the critical
stance adopted by all streams of the relevant literature used in this research. The thesis
combines common elements from Lessig’s and ANT’s approach to constructing
associations and seeks to explore the association development in the CC project.
In particular it follows two types of association constitutions: First, the meaning
manager model, first presented by Lessig, advocating the directed construction of
associations from the regulator to the regulated subject. This is done through the
investigation of the CC formal material, Lessig’s 2005 12 newsletters and the Lessig
and Boyle’s interviews, which are all collected in a single narrative about the CC
project. Second, the FLOSS-like construction is conducted through a studying of the
participation, thematic and interaction patterns over the CC licenses mailing list which
is the main locus of construction of the core CC regulatory artifact, i.e. the CC licences.
The analysis seeks to explore who participates, what is it discussed and how the
interactions take place forming the regulatory commons. The operation of the licences
in the sense of an analysis of their legal text allows an exploration of the autonomy and
the flow of rights and works in the CC project.
The analysis of the relevant data in chapter six reveals that there is a constant trend
appearing both in the CC direct ancestors and the CC project itself to move from a
project for the support of the Public Domain to a project aiming at the rationalization of
the Copyright system. The CC project tries to encourage native regulatory forms such as
share, reuse and remix of material and to support the regulatory autonomy of the creator
in the sense of choosing her own form of regulatory regime.
The biases of the CC project are also revealing of its character: first, its founder, Lessig,
has been a vocal advocate in his North America candidacy for ICANN of thin
regulation, autonomy of the creator and respect to private property. All three elements
find their way in the CC project. Second, Copyright reform in CC rhetoric and Lessig’s
20
work is acknowledged as an effort with huge cost and as a collective action problem
that may be resolved through association construction techniques. Third, the US
Copyright office has prompted CC as an organization to focus on creative regulatory
forms. Finally, and most importantly the elements the CC project draws from open
licensing can be located in two levels: first on the level of ensuring there is access in
non-discriminatory fashion to creative resources as all open content projects before CC
were aiming at; and second (and most importantly) on ensuring access on non-
discriminatory terms to the regulatory resources is also possible. The Open Law project,
that is the direct predecessor of CC in that respect, is the first attempt to create a
platform for collaborative, distributed and open access to the formation of legal
arguments. The operation of the licences accordingly indicates an effort to support the
autonomy of creators of original and secondary works, as well as to clarify creativity
and PD rules.
If the narrative and the operation of the CC licences reveal the actual focus of the
project on establishing a regulatory commons, the analysis of the data from the CC
licenses mailing list illustrates the nature of these regulatory commons. The
participation and thematic patterns indicate that not all active participants are also key
participants, while the themes follow the structure of the licences and are primarily
aiming at the encouraging of removing obstacles for the share, reuse and remix of
material. These thematic patterns most clearly illustrate how native regulatory forms
find their way into the text of the license. The interaction patterns exhibit a variety of
thread types and interactions and confirm what anecdotal evidence from FLOSS
projects indicated, i.e. that participation is fragmented, waterfall like, contributions
repetitive and innovation slow and incremental. Following such patterns, the next
question our research poses is why this model of representation was chosen if the
participation is in principle but not in practice non-discriminatory and this was known to
the CC founder in advance.
There are two answers emerging from the analysis: the first is that the fragmentation is
compensated by the existence of a class of participants, which we call dynamic
cultivators that manage to mitigate most of the adverse effects of the participation to the
lists by linking discussions, resolving disputes and igniting further innovation. The
second answer relates to the nature of representation on a mailing list that does not
21
follow the paradigm of the House of Commons but that of Common Law;
representation is not through a human delegate, but through the representation of
multiple cases across time and space on the mailing list to be then internalized by the
CC licences. However, as explained in more detail in the discussion section, there is no
real natural selection of the native regulation cases but rather a careful cultivation
method that is followed.
The discussion of the analysis results in chapter seven allows a better understanding of
the operation of the regulatory commons in the context of the CC project. A first
realization is that regulation both in its construction and in its enforcement involves the
construction of associations. In that sense, it is useful to have those two stages as close
as possible if we want to avoid increased regulatory costs. What is deduced from the
analysis is that the closer a formal regulatory instrument is to native forms of regulation
and the more immediate it is in its enforcement (i.e the less the institutions that mediate
between the regulatory content and its implementation) the less costly it is. There are
two limits in the production of formal regulatory forms close to native regulatory forms:
first the existing regulatory structures; and second the autonomy of the regulatory actor.
The latter is to be expressed in the participation in the formation and the choice of the
regulatory instrument. This model is expressed theoretically by Lessig in his work on
the Fair Use Plus model and is implemented by the CC project. This is a regulatory
model not based solely on construction but being a combined construction-cultivation
model. In the CC case, construction is primarily effected through the application of
static cultivators during the seeding or framing phase where the constituent guidelines
and overall direction of the project is set.
Three basic static cultivators are identified in the CC project: the CC licences (what is
constructed), the vocabulary used (how it is discussed), and the CC licenses mailing list
technical specifications (the possibilities of participation the means of communication
provide). The CC project attempts constructions that are always defensive, having as an
anchor point the native forms of regulation such as creative practices of sharing, using
and remixing material. For the cultivation stage, CC uses the medium of the mailing list
that technically allows non-discriminatory participation. The fragmentation of the
discussions in the form of threads is compensated by the operation of the dynamic
22
cultivators that allow an end-to-end model for the production of regulation to emerge
and link the different discussions with each other.
An e2e model for regulatory production, as the one that CC advocates, aims at a reverse
internalization process, where the regulatory instrument produced (the CC licences) has
absorbed the native regulatory forms. This is the opposite from the normal focus of a
regulatory instrument, that is, the imposition of a particular regulatory program of action
on the population. Hence, the establishment of a licence-based regime supporting the
sharing, reusing and remixing of material has to be seen as the result of CC’s broader
efforts to give voice to such native regulatory forms. The existence of a common set of
principles for all licences, has thus to be seen as an objective, as a “transient end result”
rather as a departure point. Thus, fragmentation of the Commons will be gradually
overcome as a result of a broader political process. Finally, the CC project may appear
as conservative but what it seeks to preserve are native regulatory forms and creative
practices, not Copyright’s mandates. In conclusion, CC is an e2e project that appears on
the regulatory level and hence allows e2e to also emerge on the content level, since this
is the native regulatory form on the Internet. In addition, CC is very difficult to evolve
into a proprietary project because of both static and dynamic cultivators that push
towards the direction of creative commons.
1.4. Conclusion
Summing up the thesis we may identify six basic sets of findings: first, that there are
native, exotic and formal regulatory forms and that the distantiation between native and
formal regulatory forms (when the latter are exotic), leads to increased costs of
enforcement (active regulatory costs) and additional costs for creators that are subjected
to such regulation (passive regulatory costs). Hence, a strategy for the limitation of
regulatory costs would involve formal regulatory forms that are either tying or
defending native regulatory forms. The more a utilitarian artifact or practice appears
integrated into its environment with its regulatory features disappearing and not being
perceived as a regulatory modality, the more likely it is to be a native regulatory form
and the more powerful it is. CC licences differ from End User Licence Agreements
(EULAs) and Technical Protection Measures with respect to their proximity to native
23
regulatory forms. Second, the notions of substitution and indirection appear in the case
of the CC project not as clear cut as in Lessig’s work.
Third, we gradually move away from the model of the meaning manager to the one of
the association-cultivator seeking to achieve reverse internalization. CC follows a
construction-cultivation model through the use of static and dynamic cultivators. Fourth,
the e2e model is applied in the CC project primarily on the regulation construction level
and only partially on the creative content level. Fifth, it is very difficult to leapfrog to a
creative commons construction stage without passing from the regulatory commons
phase, as such a strategy would most probably re-introduce exotic forms of regulation
and in the mid- to long-run cause the distantiation phenomenon Copyright law is
suffering from. Finally, the process of CC licences building is consciously presented as
a non-political process to increase reliability; however, it is a very political process as
illustrated by the TPM case in the CC v.3.0 licences discussions and needs to be
political in order to support the creation of the regulatory commons. The only possibility
to differentiate between political and technical elements of the CC project is by
attempting a clearer power division that would entail better defined delegation
procedures and attribution of political character to the iCommons project.
The main contribution of this thesis is the re-conceptualization of CC as a regulatory
rather than creative commons project. By exploring its theoretical (chapter four) and
conceptual foundations (section 5.1) as well as the means it employs and by
deconstructing its formal rhetoric (section 5.2), this research reveals that CC is a project
aiming at increasing the regulatory autonomy of the creator (chapter seven). While this
process seems to be out of control, cumbersome and inefficient (sections 6.4.1., 6.4.2
and 6.4.4) the use of specific association construction techniques such as tying,
ambiguation, and rituals along the cultivation of meaning over the list allows the
channelling of the regulatory process towards the direction of the creative commons.
This thesis suggests an alternative to the mainstream model for constructing and
managing regulation on the basis of an association construction analysis (chapters seven
and eight).
The second substantial contribution relates to the suggestion of a cost-based model for
assessing a regulatory intervention (section 7.1). Based on Lessig’s model for
24
evaluating regulatory cost on the basis of difficulty of constituting associations (sections
4.1 and 4.2), this thesis develops a more detailed model regarding the types of costs
incurred from a particular regulatory instrument and explains how the CC project is an
effort to drastically reduce all such costs. Distantiation is the main concept developed
for the assessing of costs, expressing the distance between regulatory production and the
enforcement (section 3.6 and 7.1.1-7.1.3). In that sense it views the Copyright-
technology problem as a regulatory cost problem arising from the distantiation
phenomenon and the CC project as a solution seeking to eradicate distantiation and
reduce costs.
Theoretically, the most important contribution is the effort to explicate Lessig’s early
theoretical work that is scattered in various papers and is often undervalued in the face
of his most recent and more popular work on the Commons (chapter four). This effort is
complemented by a comparison of Lessig’s conceptual vocabulary with that of
regulation theory, FLOSS research, aspects of Information Infrastructure literature
(sections 4.5.1 to 4.5.3) and ANT, (chapter five). By bringing these bodies of work
together we are able to construct a common vocabulary which may be used for a
description of regulatory phenomena in a more fundamental level and hence be able to
compare different modalities and levels of regulation.
Finally, the data analysis techniques employed for the exploration of the interaction
patterns are also an important contribution suggesting a way to visualize the Commons
and understand the way in which it is possible to overcome fragmentation and repetition
on the “cc licenses” mailing list. This occurs through particular devices such as the
dynamic cultivators, i.e. participants that are able to transcend the strict waterfall model
of the list because of their broad experience and steer the discussion towards a specific
direction (see chapters five and six).
The main limitation of the thesis relates to the use of Lessig’s version of regulatory
theory, the non-comprehensive ANT-Lessig analysis, the limited data range and the fact
that any generalizations made on the basis of the thesis have to be done with extreme
care so that the same type of situation is compared. There are many further research
avenues, but we focus on the following ones: conducting further research on CC deep
threads; explore the possibilities of regulatory ethnographies for the discovery of native
25
forms of regulation; advance the regulatory costs model; investigate the locus of IPR
decision making and trace its links with particular regulatory content.
The following chapter presents the first stage of our investigation of the CC project, the
critique of the CC project, which allows a look into its most controversial aspects and
invites an analysis of the reasons behind their occurrence.
26
Chapter Two Overview and critique of the Creative
Commons project
2. Introduction
The objective of this chapter is (a) to explain how the CC project operates and (b) to
present the critique of CC. The latter is as important for an appreciation of the
mechanics of the CC project as a discussion of its features. This is because a critical
view of CC allows us to highlighting the aspects of the project that are the most
controversial. Such aspects will operate as the starting point into the actual character of
the CC phenomenon. The CC features will be further explained through the theoretical
chapters three, four and five that relate CC respectively with the Copyright literature,
Lessig’s work, the research on regulation, Free/ Libre Open Source Software and
Information Infrastructures design and ANT concepts.
The structure of this chapter is as follows: section 2.1 is dedicated to an overall
presentation of the CC project. In section 2.2 we present the context in which the
critique is taking place and the reasons behind the choice to focus on Elkin-Koren's
work. The next section (section 2.3) examines the ontological assumptions of the
critique of the CC project and the degree to which it is influenced by Lessig's work and
vocabulary. The fourth section (section 2.4) explores how Elkin-Koren’s work relates to
this study. The following section (section 2.5) presents the image of the CC project in
Elkin-Koren’s work and section 2.6 illustrates the basic axes of the critique of the CC
project and the way they relate with each other. Section 2.7 deals with the problems the
CC project is likely to be facing in its meaning construction efforts due to the choice of
specific means for its realization. Section 2.8 explores in detail the relationship between
the claimed ideological fuzziness of the CC project and the existence of more than one
licence, whereas the chapter closes with a brief summary of the findings up to this stage
of the thesis.
27
2.1 An overview of the Creative Commons project
Creative Commons is predominantly known as a project that provides a set of licences
that support the share, reuse and remix of digital content in online environments
(Creative Commons, 2007a). Creative Commons as a term may thus denote three
things: First, the whole project aiming at the legal reuse of online material; second, the
set of standardized licences that make the objectives of the project possible; and third,
the CC organization.
The Creative Commons project was founded by Lawrence Lessig while he was a
professor at Harvard Law School, the Berkman Center for Internet and Society
(Creative Commons, 2006c). Lessig was influenced by Richard Stallman’s General
Public Licence (Stallman, 1999; Stallman, 2002) in the sense of providing a
standardized licence for the free distribution and remix of material on the Internet
(Lessig, 2005i; 2005j). The core concept of the project was to allow novel forms of
creativity that were taking place on the Internet to be conducted in a legal way (Lessig,
2005k). The basic idea of those forms of creativity was that they were based on pre-
existing works and that the obtaining of permission from the original rights-holders was
becoming increasingly difficult (Lessig, 2005h; 2005l). Lessig and his colleagues have
originally sought for a solution from the U.S. Copyright Office (Brown, Paharia, Junell
and Walker, 2002). However, the latter’s suggestion that there was no available legal
instrument to solve the problem had led Lessig to become creative in the sense of
producing a novel regulatory instrument, i.e. the CC licences. Such an instrument was
set to define a “middle ground” between a “no-rights reserved” approach as found in the
case of file-sharing culture and the “all-rights” reserved approach adopted by the
Copyright industry (Creative Commons, 2005a).
The CC project seeks to achieve its objectives by putting in place specific mechanisms
that are based on the assumption that the regulatory intervention should occur in three
levels: legal, technical and semantic (Creative Commons, 2006e; 2006f). In the legal
level, the Creative Commons project provides six versions of its licences that are
produced as the result of the combination of one fixed (Attribution) and three variable
elements (ShareAlike, NonCommercial, No Derivative Works). The most open licences
allow the reproduction and adaptation of the licensed material with no obligations on
behalf of the licensee other than the attribution to the original author. The least open
28
licences allow only verbatim reproduction of the licensed content with the obligations to
attribute the original author and not to use the material for commercial purposes.
Unlike the General Public Licence, in the case of CC there is no single set of licences
valid across all jurisdictions; instead each jurisdiction that opts to adopt the CC project
also has to adapt the CC licences to its own legal system and national language
(Creative Commons, 2004a; 2004b; 2004c; 2004d). This process is called “porting”
following the computer science terminology denoting “the process of adapting software
so that an executable program can be created for a computing environment that is
different from the one for which it was originally designed (e.g. different CPU,
operating system, or third party library). The term is also used in a general way to refer
to the changing of software/hardware to make them usable in different environments.”
(Wikipedia, 2007a) All CC licences of the same kind, e.g. the Creative Commons
Attribution, ShareAlike, NonCommercial v.3.0 licences are comprised of the same legal
features irrespective of the jurisdiction in which they have been ported. In that sense, the
structure of each licence looks as a pyramid where the licence type is at the top and all
compatible licence of the same type at the bottom of the pyramid.
Such structure is reflected on the international organizational structure of the CC
project: an international office responsible for the coordination of all licensing drafting
processes in the respective jurisdictions is based in Berlin (Faris, 2006a) (Ford, Ito,
Henckel, Keller, Lemos, Lessig, Medak and Wales, 2006) (Wilbanks, Donnersmarck,
Ford, Garlick and Linksvayer, 2006). This is called the Creative Commons International
office and is staffed by a CC International Director and two Assistants (Creative
Commons, 2006j). After getting in touch with local communities, the CC International
appoints in each jurisdiction a Hosting Institution, and one or more Legal Project and
Public Project Leads (Creative Commons, 2005a). The Hosting Institution tends to be
an influential organization within the jurisdiction that the licence is to be ported. Figure
2.1 illustrates a list of the various CC organizations.
29
Country Name Organisation Type
Argentina Non-profit Organization
Austria University
Australia University
Belgium Research Center
Bulgaria NGO
Brazil non-profit institution
Canada University
Switzerland institute
Chile University
Mainland China Renmin University
Colombia University
Croatia NGO
Denmark University
Finland Institute
France University/ Institute
Germany University/ Institute
Hungary University
Ireland University
Israel Univesity
India Public Institute
Italy University
Jordan Law Firm
Japan University
Korea Association
Malta institute / Organization
Mexico Law Firm
Malaysia Institute/ Organization
Nigeria Law Firm
Netherlands Univeristy/ Institute
Peru Association/ NGO
Philippines NGO/ University
Poland University/ Association
Sweden University
Slovenia Institute/ Organization
Spain Univesity
Taiwan Institute
Ukraine NGO/ Private Organization
UK : England & Wales University
UK : Scotland University
South Africa Research Center
Figure 2.1
30
The Legal Project Lead is responsible for the coordination of the drafting process for the
national version of the licences, whereas the Public Project Lead is responsible for the
community building. The Hosting Institution signs with Creative Commons a
Memorandum Of Understanding (MoU) that sets the terms under which the CC
trademarks are to be used and the way in which the licence development process is to be
instrumented (Creative Commons, 2006e). Objective, thus, of the National CC projects
structure is not solely to port the licences from one jurisdiction to another but also to
construct local communities and get feedback from the experience from national
communities and embed it into the licences. In October 2007, 38 jurisdictions had
completed the licensing porting process and 11 more were still in the process of
discussing the licences to be implemented (Creative Commons, 2007a) (Creative
Commons, 2006h). Figure 2.2 illustrates the CC project launches per month in the
period between 2004 and 2006. An average of 0.97 launches per month took place
during that period. Each launch corresponds to a national set of CC licences. It is
important to note that the discussion regarding the licences does not occur only in the
national level but mostly in the international level on the CC licences mailing list. It is
these discussions that take place in English that are quoted when a licence moves to its
next version.
31
CCi Launches per month
6
No of National CC Launches 5
4
3
2
1
0
y
pt ne
ry
ov st
Ja er
ly
ch
er
ec ber
Au y
Fe ber
04
07
ril
ar
a
Ju
N gu
ua
b
Ap
ob
Se Ju
M
ar
20
nu
20
em
em
em
br
M
ct
O
D
Time
Figure 2.2 CCi Launches per month
The CC licences have known four versions up to now (October 2007): versions 1.0, 2.0,
2.5 and 3.0. Each successive version is thoroughly discussed on the cc-licenses mailing
list. The decision is not taken after some formal voting process but directly by the
general CC Legal Counsel once she feels that consensus has been achieved. The CC
Legal Counsels have been Glenn Otis Brown for versions 1.0 to 2.5 and Mia Garlick for
version 3.0. Garlick has publicly explained how she reached her decision and grounded
it to the discussions taking place over the “cc licenses” mailing list (Garlick, 2006;
2007).
Though the organizational structure of the Creative Commons International follows the
way in which the national licences are built, the overall organizational structure of
various CC-related projects and the iCommons organization in particular is not equally
related to the building of the licences or the local communities (iCommons, 2006a).
Creative Commons is incorporated as a non-profit company in the U.S. and iCommons
32
in the U.K (Creative Commons, 2005d) (iCommons, 2005). Since the summer of 2005,
Creative Commons organizes an annual international summit, which is called iSummit.
In the iSummit 2006 we have seen the emergence of iCommons, an entity that is
responsible for the development of the relevant community, whereas Creative
Commons was confined in the realms of licensing production (Faris, 2006a; 2006b).
One member of the CC national projects (Paul Keller from CC Netherlands)
(iCommons, 2006b) currently sits in the iCommons Advisory Board, which seems to be
driving the whole of the CC project right now, though such member was not elected,
neither are his responsibilities clearly set (iCommons, 2006b).
Returning to the issue of the CC licences, besides their legal dimension they have a
technological expression in terms of meta-data that may be added to any item that may
be identified on the World Wide Web through a Uniform Resource Identifier (URI).
Once the legal text of the licences is completed the respective national teams produce
XHTML versions of the six licences that are then stored on the servers of CC Corp. in
San Francisco. Each of the national six versions of the CC licence is thus linked to
unique URI. Once a licensor decides to distribute a work under a CC licence, then she
has to follow a “licence wizard” on the CC website (Creative Commons, 2006f). By
using the wizard not only she is able to choose the licence that is most suitable to her
needs, but she also tags her work with the meta-data that describe the kind of licence
she has chosen for her work. This is done through the inclusion of a reference to the
URI of the licence type she has chosen to use. Reference to the URI that links to the
licensing information of the work needs to be provided along each copy or adaptation of
the licensed work [see e.g. sections 4b and 5d of the Unported CC Attribution -
ShareAlike – NonCommercial v.3.0 licence (Creative Commons, 2007b)]. Such
information allows search engines to identify the number of works licensed under CC
licences and the user of a work to easily identify with the assistance of technical means
the kind of rights she may have in relation to a specific work.
As indicated above, the CC licences also have a third dimension, that is, their basic parts
are expressed in plain language and simple icons, so that their operation is understood
even by a non-legal expert (Creative Commons, 2004a; 2004b; 2004c; 2004d). This was
deemed as necessary due to the nature of the CC licences as public standardized
documents that are to be used by creators that do not have a legal service at their
33
disposal. Such a creator would require not only a set of licences that would be easy to
use but also to understand their operation. Note, that this was not the case with the GPL
which was addressed to a fairly coherent community (software developers) that were
well accustomed to the social norms the GPL expressed in legal terms. The Commons
Deed, which is the term used by CC in order to denote this high-level simple language
expression of the various CC licences, is produced by the national CC teams and is then
sent to the CC headquarters along the XHTML version of the legal text of the licences
so that is incorporated in the CC licensing wizard. The link between the three levels of
the licences (legal text, meta data and Commons Deed) is expressed in diagram 2.1 that
is provided by the CC web-site and explains their relationship (Creative Commons,
2007a):
Figure 2.3 Diagrammatic representation of the relationship between Commons Deed,
Legal Code and Digital Code
34
The CC licences are at the core of the Creative Commons project; however, they are not
its sole focus and objective. As the CC project expands in number of jurisdictions and
works that are licensed under the CC licences it also become more diversified in terms
of the project it covers and the objectives it has. The introduction of the iCommons
project and organization in Summer 2006 serves this transition to an umbrella
organization, which to a great degree as its purpose to support all forms of open culture
and free content dissemination (Faris, 2006a). Hence the last three years we have seen
the emergence of organizations like Science Commons (ScienceCommons, 2006a;
2006b), that deals specifically with the promotion of Open Knowledge in the areas of
Science and Academia or the CC Learn (Creative Commons Learn, 2007), which aims
at the introduction of Open licensing in Education. Finally, following the ccMixter
initiative that aimed at the support of the music-remix culture through the provision of
the relevant platform (Creative Commons Mixter, 2006), in Autumn 2006 CC has
introduced the CC+ project (Lessig, 2007b), which is a platform encouraging artists
using the CC licences to get syndicated and commercially exploit their works.
While the CC project is constantly expanding and getting diversified, the licences still
remain its most central aspect. This was even more intense in the project’s early stages,
which are the primary focus of this research. Appreciating the mode of their
development and the way of their operation is a presupposition for a good
understanding of the whole of the CC project.
2.2 Who is doing the critique and in which context (academic,
practitioners, community); why to focus on Elkin-Koren's work
In the previous section we have presented the basic features of the Creative Commons
phenomenon emphasizing the role of the CC licences and illustrating their relationship
with the organizational structure and expansion of the whole project. In this section, we
are venturing to an investigation of Creative Commons having as our starting point
Elkin-Koren's puzzles regarding the nature as well as the efficiency and effectiveness of
the Creative Commons licensing project (2005; 2006a). Elkin-Koren's critique of the
Creative Commons project questions the ideological soundness of the project claiming
its “ideological fuzziness” is at least counterproductive for its set objectives, that is, the
35
establishment of a commons of creative works everyone has in principle access to. This
ideological fuzziness is at the heart of Elkin-Koren's critique of Creative Commons: it
directly reflects on the means that have been chosen for materializing such objectives,
i.e. multiple copyright licences with no minimum common denominator. Objective of
this chapter is to present the basic aspects of the critique of the CC project as they have
been presented in the relevant literature focusing in particular on Elkin-Koren's work in
2005 and 2006. A summary of the various aspects of the CC critique is found in the
form of a table in Appendix I.
The critique of the CC project occurs in three levels: first, the level of the community as
expressed on the “cc licenses” mailing list and the iSummit; second, the practitioners'
press; and finally, the academic literature. Of these three categories in this chapter we
focus only on the relevant academic literature and particularly the work of Elkin-Koren
as her writings encapsulate most of the relevant arguments and provide us with the most
comprehensive account of the issues of concern regarding the CC project.
Elkin-Koren's work is relevant as a critique of the CC project on two levels. First, she is
a person that has been actively involved in the 'porting' of the CC licences to her home
jurisdiction, i.e. Israel, and hence has a hands on experience of the licences. Second, her
work is particularly important conceptually as it highlights the breakdown moments of
the CC project and allows us to construct a map of the issues that we may investigate in
order to explore its underlying characteristics.
Being the director of the Haifa University Center of Law and Technology that is
currently hosting the Creative Commons Israel project (Creative Commons, 2007d) and
having participated to the porting of the Creative Commons licences to the local legal
system (2006b), Elkin-Koren has had personal experience of the Creative Commons as
a licensing project; her critique was one of the most comprehensive ones in the
academic press at the time of writing of this thesis and also one to highlight an
increasing uneasiness among members of national Creative Commons projects
regarding the nature and identity of Creative Commons.
More than anything else, Elkin-Koren's critique highlights a moment of -if not
conceptual breakdown, then at least- critical transition in the life of the Creative
Commons project, a moment when the rhetoric of the Commons seems to contrast with
36
the strategies for its achievement. This thesis argues that an appreciation of the
appearing inconsistencies within the Creative Commons project is only possible through
a holistic approach that focuses on its regulatory and association construction
dimension. Creative Commons may be seen as a proposal for handling some of the
problems that Copyright law faces with reference to technological change.
As we will see in chapter three (sections 3.1 and 3.2) there are two types of problems in
relation to copyright and technology-driven practices of creativity and content
dissemination: first order problems related to the inefficient or ineffective enforcement
of the rights by the rights holders; and second order problems related to the impact of
over expansion of rights on creativity. These problems, especially the latter, have been
identified by the literature as the crux of the issues modern Copyright is facing and we
use the term “Copyright crisis” to describe them in this thesis. This research argues that
such phenomena are the symptom rather than the manifestation of a deeper problem of a
structural nature: it is the alienation from the means of regulation production that
encourages the development of imbalanced regulatory instruments and causes the
exclusion of secondary creators from the creative process.
The CC project does indeed lie in the intersection of the existing literature on the
evolution of different models of Copyright regulation. Having expanded both in terms
of scope and ambit as a result of its constant effort to respond to technological changes,
Copyright law has accumulated a series of characteristics threatening the Public Domain
(section 3.3). In an effort to respond to an environment of increasing uncertainty and
complexity Copyright holders have extensively used a nexus of standardized End User
Licence Agreements (EULAs) and Technological Protection Measures (TPM) backed
up by legislation preventing their bypassing. Such developments have strengthened
private ordering in the area of creativity regulation (section 3.1). In such an environment
the CC project uses the same tools as traditional Copyright holders use (i.e. EULAs and
technologies) to resolve the problems Copyright faces (shrinking of the Public Domain).
The reason why Elkin-Koren's criticism is of such importance to this research is
precisely because it provides an opportunity to investigate the assumptions behind the
CC project and to assess the CC licences. Elkin-Koren refers to them as CC’s
“normative level” (2005) and this thesis as its regulatory structure.
37
2.3 Ontology of the critique of the CC project
The critique of the CC project has multiple sources [e.g. (Elkin-Koren, 2006a) (Berry,
2006) (Chance, 2006a) (Klang, 2006) (Orlowsky, 2007) (Dvorak, 2005)]. In the same
way such critique from different authors converges in the level of arguments, it also has
some common ontological assumptions. A brief presentation of these assumptions
facilitates a better understanding of the grounds on which the critique itself is based.
Τhe most fundamental of these ontological presuppositions relates to an understanding
of the Commons or the Public Domain as constructed. We refer in great detail to the
issue of constructivism both in chapter four (sections 4.1.1 to 4.1.4), where we examine
how Lessig approaches the problem of regulatory construction and in chapter three
where we investigate the Commons and Copyright as constructed concepts (section
3.4). All we need to add in this section is that the critique of the CC project implicitly
accepts the same ontology specifically regarding Public Domain/ Commons, Copyright
and more generally about regulation.
There are two aspects of constructivism that may be traced, particularly in Elkin-
Koren's work but also in the writings of the rest of the critics: First, the Commons or the
Public Domain are not given but rather constructed and in that sense the conditions of
their existence may be formed on a collective or individual basis. Second, the
intervention for the construction of the Commons is possible and indeed should be done
in order to build a Commons that is more likely to serve the needs of future creators.
These two characteristics of constructivism echo two further assumptions embedded
into the work of the CC critics. The first has to do with the future and proactive
orientation of the CC critics: they have a very clear reformative agenda that is often
based on the legal problems the classic Copyright project faces (e.g. the rise of private -
and hence unaccountable- ordering in Cyberspace as described in section 4.4.1), as is
the case with Elkin-Koren (2005), or the impasse for the new creators that base much of
their work on preexisting creative forms, as is the case with Berry (2006) and Moeller
(2006).
38
The second feature of the CC critique constructivism is perhaps the most important in
its ontology and relates to the dimension of the Commons the critics emphasize most. It
relates to an understanding of the Commons purely in their regulatory dimension:
“But what does a "commons" mean? Strictly defined, a commons is a legal
regime, in which "multiple owners are each endowed with the privilege to use a
given resource, and no one has the right to exclude another."” (Elkin-Koren,
2005 p.22)
For Elkin-Koren the Public Domain is “in the strict legal sense (...) a regime with no
exclusive proprietary rights.” (2005 p. 5)
Though Elkin-Koren acknowledges the existence of further aspects of the Commons
concept, she chooses to focus only on its regulatory side and accordingly on the
regulatory strategy of the CC project as expressed with the provision of more than one
licence. As a result of such a starting point all the critique of the CC project focuses
explicitly on the licences, i.e. the regulatory conditions for the production of the
Commons, rather than the Commons themselves.
A final point to make regarding the ontology of the critique of the CC project relates to
the way in which these regulatory structures that produce the Commons, such as the
licences are approached as fixed in time with no historicity neither further possibilities
of development. This static view of the licences has as a direct result the absence of any
analysis regarding the way in which the licences have been developed or the reasons
behind the choice of their particular characteristics. It is also the result of the focus of
the critique of the CC project on the regulatory conditions it produces for the Commons,
rather than the Commons themselves.
This static view of the regulatory conditions for the establishment of the Commons in
the CC project is in a sense compensated by an understanding of the regulatory problem
of meaning construction that is placed particularly by Elkin-Koren at the center of her
critique of the CC project: the means employed for the construction of the Commons are
ineffective not only from a regulatory perspective but also from a meaning construction
perspective. In the following section we explore in greater detail the different branches
of the critique of the CC project where the various ontological assumptions presented in
this section are more clearly illustrated.
39
2.4 Elkin-Koren's work and how it relates to the current study
Two rather recent papers by Elkin-Koren (2005; 2006a) provide the best entry point to
the whole issue by illustrating both the outline of the Creative Commons agenda and its
main strategy. Elkin-Koren has dealt with the issue of private agreements and End User
Licence Agreements as forms of private ordering in Cyberspace for some time (1997;
1998; 2006b) and as such her work links the two streams of literature: the literature on
EULAs as a new regulatory form (sections 3.1 and 3.2) and the literature on the
problems related to public domain or the Commons (section 3.3).
Elkin-Koren's work (2005; 2006a; 2006b) is of particular relevance to this research as it
highlights the most contentious elements of the Creative Commons project and relates it
to much of the structural changes Copyright regulation has experienced in the last two
and a half decades. Her work is based on two assumptions: First that the overexpansion
of Copyrights has been harmful for creativity and innovation, as they are based on the
Public Domain. Thus she links to the work of Samuelson (1990; 1993a; 1993b; 1999a;
1999b; 2000; 2001; 2003; 2004a; 2004b; 2005a; 2005b; 2006; Samuelson and
Scotchner, 2002; Samuelson, Davis, Kapor and Reichman, 1994), Littman (Lai, 1999;
Litman, 1989; 19911990; 1994; 2001; 2004), Benkler (B.G., 2003; Benkler, 1998;
1999; 2000; 2001; 2002; 2003a; 2003b; 2006) and Lessig (1999a; 1999c; 1999d; 2000d;
2001a; 2001b; 2002c) on the Public Domain and the Commons. All the aforementioned
authors have dedicated much of their work in the investigation of (a) the beneficial
effects of a rich public domain for creativity, (b) the eradication of public domain
through copyright expansion and (c) the detrimental effects of such expansion. Second,
Elkin-Koren assumes that Creative Commons is an effort aimed primarily at enriching
such public domain through licensing.
Elkin-Koren's previous work (1997; 1998) focused on the way licences and other
private agreements have been employed in order to serve better the rights of rights
holders in complex on-line environments. In that sense she follows the work of Littman
(1997; 1998; 2001), Dussolier (1999) and Hardy (1996; 1999) on the same area. Further
40
to that, she is assuming that such instruments: first still face serious issues of legitimacy
and legal validity; second, they constitute a social practice and thus norm that reinforces
the belief that all intellectual creations are owned; third, because of their legal and social
operation constitute one of the driving forces in the expansion of Copyright law's
fundamentalism and eradication of the public domain.
2.5 The image of the CC project in Elkin-Koren's work
Similarly to Dusollier (2006) Elkin-Koren (2005) investigates the way in which private
agreements or Copyright licences may be used in order to limit the negative effects of
“Copyright fundamentalism”. Providing a first description of Creative Commons, Elkin-
Koren focuses CC’s licensing elements:
“Creative Commons is a non-profit U.S.-based organization that operates a
licensing platform to promote free use of creative works. The idea is to facilitate
the release of creative works under generous license terms that would make
works available for sharing and reuse. Creative Commons advocates the use of
copyrights in a rather subversive way that would ultimately change their
meaning. It introduces an innovative way of exercising legal rights to bring
about social change.”(Elkin-Koren, 2005 p. 4)
Elkin-Koren views the CC project as an effort to reform Copyright not through
legislative changes but rather by convincing the rights holders to exercise their rights in
a different way:
“Copyright law is located at the heart of Creative Commons' agenda and is
viewed as the main obstacle for what is perceived as an ideal world of creating
and sharing creative works. (...) The legal strategy of Creative Commons, by
contrast, is not to lobby for new legislation or file strategic lawsuits to reinterpret
existing rights in a way that would promote the public domain. Instead it focuses
on social practices related to exercising legal rights, i.e., property rights.”(Elkin-
Koren, 2005 p. 26)
41
2.6 Basic features of Elkin-Koren's critique of the CC project:
ideological fuzziness and choice of licences as the preferred
instrument for supporting the Commons
Elkin-Koren’s (2005) work is a direct critique of the Creative Commons strategy in two
fronts: first and foremost, on not having a clear vision of what constitutes public domain
and how its protection should be effectively pursued; and second, on using licences as
the main instrument for constructing social meaning that could indirectly effect
legislative change:
“Creative Commons' strategy deviates from the current copyright/public domain
dichotomy. First, it does not aim at creating a public domain, at least not in the
strict legal sense of a regime with no exclusive proprietary rights. Second,
Creative Commons' strategy is entirely dependent upon a proprietary regime,
and derives its legal force from the regime's existence. The normative
framework assumes the possibility of replacing the common practices of
producing and distributing creative works without changing the proprietary
regime. Social change, it is believed, would emerge from simply exercising
these rights differently. (...) Creative Commons lacks a comprehensive vision of
the information society and a clear definition of the prerequisites for open access
to creative works. The end result is ideological fuzziness. This fuzziness may
impair the advent of a workable and sustainable alternative to copyright through
grassroots activism facilitated by contracts.” (Elkin-Koren, 2005 p. 5)
This latter point raised by Elkin-Koren, that is, Creative Commons not having a
concrete strategic vision on what public domain is and how it could be pursued on the
regulatory level, though directed as a criticism against Creative Commons, constitutes
in fact the core of a broader debate. The question of what is public domain for
Intellectual Property rights and which are the best possible means for achieving its
creation dates at least three decades back from today in the papers of professors Brown
(1976-77) and Lange (1981) and is an issue we deal with in greater detail in chapter
three.
Elkin-Koren differentiates Creative Commons' position from the traditional discourse
based on the dichotomy between public domain and private ownership. Consistent with
the conceptual differentiation between public domain and the commons as expressed by
Lessig (2003c; 2004b; 2004d; 2006c) and described by Boyle (1997a; 2003a; 2003c),
the CC project as a movement is more in the pursue of the latter than the former: CC is
directed more towards the establishment of a set of rules that will allow non-
42
discriminatory access to a resource, than eradicating all rules governing access to such a
resource.
Elkin-Koren’s critique, however, does not relate to an abstract concern for the Public
Domain but is rather directly linked to the question of how the CC strategy could
contribute to “enhancing the sharing, distribution, and reuse of creative works”
(Creative Commons, 2007a).
Elkin-Koren starts with a sketching of the underlying assumptions of Creative
Commons in relation to Copyright and creativity as follows:
“1) Creativity relies on access and use of preexisting works; (2) copyright law
creates new barriers on access to works, becoming an obstacle for sharing and
reusing creative works; (3) the high costs associated with the copyright regime
limit the ability of individuals to access and reuse creative works; and (4)
copyrights should be exercised in a way that promotes sharing and reusing.”
(Elkin-Koren, 2005 p. 8)
She then moves to the identification of Creative Commons’ basic underlying strategy.
As she claims (Elkin-Koren, 2005), explicitly influenced by the work of Lawrence
Lessig (1995c; 1999f; 2001b), Creative Commons does not seek to change the law
directly but rather through the establishment of social practices of dealing differently
with our rights. As such, it is based on the provision of standardized licences about how
people could manage their rights in a way different from what the traditional copyright
owners would do.
“Creative Commons' ideology echoes a libertarian sentiment: What if we can
take the law into our own hands? What if we can make our own rules? It offers
authors/owners a chance to govern the use of their own works. (…) Creative
Commons situates its activism in civil society. It aims to transform the
information environment by changing social practices and norms. It simply
advocates exercising copyright in a way that would enhance sharing and reuse. It
neither calls for diminishing copyright protection entirely, nor for abandoning
rights. Instead, Creative Commons advocates a use of these rights in a way that
is likely to change their meaning. Creators are called to voluntarily restrain the
legal power they were granted under copyright law, and place either no
restrictions, or only a few restrictions, on the use of their creative works.
Ultimately, the purpose is to redefine social norms and promote values of
sharing and reusing.” (Elkin-Koren, 2005 p. 21)
43
2.7 Problems with CC meaning construction strategy as a result
of ideological fuzziness
Elkin-Koren objects to this strategy for a variety of reasons. First, if social meaning is to
be created, then this meaning should be crisp and clear, so that everyone is able to
internalize it. CC tends to be ideologically neutral and open to a variety of opinions
about the public domain. Though this may be a good strategy for the establishment of a
social movement, it is not the best way to proceed with the creation of meaning.
“While authors' rights are clearly defined, the notion of the commons remains
vague. The term "Creative Commons" communicates a powerful message. It
celebrates a "commons" as a key for enhancing creativity. But what does a
"commons" mean? Strictly defined, a commons is a legal regime, in which
"multiple owners are each endowed with the privilege to use a given resource,
and no one has the right to exclude another." Yet, the notion of the commons
may refer to a wide range of situations. The lack of a clear definition of the
commons reflects a profound disagreement regarding the meaning of the public
domain.” (Elkin-Koren, 2005 p.22)
Elkin-Koren presents her concerns in the form of two academic papers published in
2005 (2005) and 2006 (2006a) respectively and a presentation made in summer 2006 at
the iSummit 06 (Faris, 2006a). Her arguments seem to be shared by a series of other
Creative Commons commentators that are more verbal in the expression of their
concerns compared to Elkin-Koren. Mako-Hill (2005), Berry (2006; Berry and Moss,
2005), Breck (2006), Klang, (2006) and Chance (2006a; 2006b; 2006c; 2006d) focus on
the same point: it is less than clear what does the Commons represent for the Creative
Commons project; and if the concept of the Commons is not clear, it only natural to ask
how it is possible to construct it.
2.8 Linking ideological fuzziness and the CC licensing problem
The critique of Creative Commons in relation to lack of clarity may be classified in two
broad categories:
44
First, there is a group of authors highlighting the lack of clarity in relation to the concept
of the Commons as expressed in the rhetoric of the CC project. Their comments relate
both to the working definition and the vision of Commons the CC project seeks to
achieve.
Second, there is another line of argumentation related to the licences themselves. The
issues range from the choice of licences as the strategic instrument to the lack of a clear
minimum of values that all licences should have.
The two aspects of the Commons definition problems in the CC project relate with each
other: much of the confusion regarding what the Commons is or should be derived from
the existence of more than one licence.
Elkin-Koren's critique is mostly of practical nature: the lack of a core ideology reflects
on the absence of a definition for what a Commons is and hence the lack of a clear
objective to be aiming at. In addition, if there is no common definition for the
Commons, then there is no minimum of freedoms that all Creative Commons licences
should have. If Commons is not clearly defined, then there is a problem in the
construction of the relevant social meaning; if the Commons is the equivalent to the
Public Domain then the means employed by Creative Commons are not the most
appropriate ones for the construction of the concept; as a matter of fact, they may
fragment rather than support the Commons. Elkin-Koren's definition of the Commons is
the one that is closer to Littman's (1990) definition:
“But what does a "commons" mean? Strictly defined, a commons is a legal
regime, in which "multiple owners are each endowed with the privilege to use a
given resource, and no one has the right to exclude another."” (Elkin-Koren,
2005 p. 22)
A utilitarian and agnostic in its foundations view for what constitutes a Commons
constitutes to a great extent the crux of the Creative Commons world-view. Berry is also
critical of Creative Commons' approach on both fronts (Berry, 2006; Berry and Moss,
2005), that is, utilitarianism and agnosticism: first, because it insists in viewing the
Commons as a “standing reserve” to be used; second, because such agnosticism is to the
benefit of the clearly defined proprietary culture. Both aspects of this critique are in
45
agreement with Elkin-Koren's views and have a clear political, anti-property agenda.
This is an argument also found in Elkin-Koren's work that views the Creative Commons
as a pro-property rather than as a pro-commons project.
Looking more carefully into the details of the arguments related to the fuzziness of the
Commons definition or its ideological foundations, it gradually becomes apparent that
the criticism is not so much about not having a clear ideology but rather because of the
existence of a political position. Elkin-Koren presents as one of the major drawbacks of
the CC project its inconsistency between a vision for the Public Domain as she defines
it and the means it employs to achieve it. Such means are the reliance on Copyright, the
explicit acceptance of property structures and the implicit cultivation of a permission
culture through the use of copyright licensing. Similar is Berry's analysis: Creative
Commons is overtly positive to private property and the autonomy of the creator to the
detriment of the Commons.
Elkin-Koren reaches a conclusion similar to the one formed by Berry while following a
different path. As we will see in more detail in the subsequent section, dealing with the
licensing issue in the CC project, the existence of multiple licences accompanied by a
less than clear ideology promotes a proprietary message:
“Now that individual authors are not only aware of the proprietary regime but
are also armed with an efficient mechanism to execute their intellectual property
rights, they may use the mechanism to set limits on the exploitation of their
works.” (Elkin-Koren, 2005 p. 37)
In other words, the social meaning that is established is one of starting with
privatization rather than the public domain being the baseline. In the worse possible
scenario both occurrences appear: the user is not really sure which licence to use, but
has internalized the fact that a licence is needed for using any form of content. In that
sense the objective of removing the intermediaries, which is a dominant feature of the
existing copyright regime is not really achieved.
“In sum, Creative Commons' ideology communicates a strong proprietary
message: Authors should be free to govern their own works. The sovereignty of
authors inevitably leads Creative Commons to promote a whole range of
licensing schemes and different agendas pulling in different directions. At the
same time, however, Creative Commons lacks a comprehensive vision of the
information society and a clear definition of the prerequisites for open access to
creative works. The end result is ideological fuzziness. The fuzziness of
46
ideology and the broadly defined agenda would normally serve the purpose of a
social movement. It may help to expand public support and facilitate alliances
among different social actors: Non-governmental organizations ("NGOs")
promoting a wide range of political agendas and corporate players motivated by
self-interest. While this could strengthen the effectiveness of social movements
that focus on protest and resistance, it could be detrimental to one with a
proactive agenda.” (Elkin-Koren, 2005 p. 23)
The CC ideology is fuzzy and unclear. The multitude of CC licences reflects the lack of
a specific vision of what constitutes Public Domain.
2.8.1 Objections to licensing as a tool for enhancing the Commons
The existence of more than one licence is at the core of the CC project’s focus on the
protection of the creator's autonomy; at the same time, the way the licensing scheme of
the CC project operates is at the core of the critique against it. We may classify the
critique in three categories: first, there is a group of commentators objecting to the use
of licensing altogether as counterproductive to the creation of Public Domain; then,
there is a second group objecting to the existence of more than one licences; and finally,
there is a third group arguing that even if multiple licences are chosen to be the
instrument of choice for the establishment of a commons, then there should be a
minimum of freedoms that should run through all licences, a standard of freedom as
Moeller and Mako-Hill call it (2005). Each of the aforementioned categories requires
separate treatment as it highlights different aspects of the Creative Commons' ontology.
2.8.2. Objecting to licences as a tool altogether
The strategy of the CC project to propose multiple versions of a licence that reflect
different types of uses as a way for achieving the Commons is for Elkin-Koren
particularly risky.
47
The use of licensing per se induces a permission culture: the creator feels that she needs
to map the rights she wishes to grant to the user of her work; the user of the work gets
accustomed into checking for permissions before actually using the work.
Elkin-Koren (2005; 2006a; 2006b), Berry and Moss (2005) object to the use of licences
altogether having different starting points but coming to the same conclusion. Berry and
Moss's objection is primarily ideological: by accepting Copyright through licensing
there is an implicit acceptance of its ideological biases and presuppositions. As they
frame the issue, Creative Commons is too much a child of its own time; it expresses and
reinforces the current balance of power between different stakeholders in the area of
regulating creativity, instead of striving for an alternative future:
“We argue that the Creative Commons project on the whole fails to confront and
look beyond the logic and power asymmetries of the present. It tends to conflate
how the world is with what it could be, with what we might want it to be. It’s
too of this time—it is too timely. We find an organisation with an ideology and
worldview that agrees too readily with that of the global “creative” and media
industries.” (Berry and Moss, 2005 part I)
Elkin-Koren's argument is of a similar nature, though not so much on the ideological
side of the fence: The first part of her argument is that Creative Commons by suggesting
the use of licences as the tools for constructing the Commons essentially induces them
into granting and asking permission in relation to creative works. If there is one
common element in all CC licences, that is their very nature of being licences, i.e. legal
artifacts that signify permission. If there is one type of meaning that is undoubtedly
constructed through a CC experience then that is the granting of permission constitutes
an integral part of the creative process.
The second-part of Elkin-Koren's argument relates to the legal validity of the licences: if
they are legally invalid, a point for which she argues from a variety of perspectives, then
they are as good as nothing; if they are legally valid then they constitute a dangerous
legal precedent for all End User Licence Agreements the legal enforceability of which is
strengthened with every new CC licence in circulation (Elkin-Koren, 1997; 1998;
2005). The licences may be legally workable only if the enforcement of rights on third
parties is accepted. End User Licence Agreements and Shrink Wrap licences are
48
legitimized since the CC licences constitute a similar type of a legal instrument.
Moreover, if the CC licences are construed as a legal effort to create new property
rights, its acceptance may open the Pandora’s Box for the creation or the legitimization
of creation of new forms of property rights. As a result, the CC licences seem in
summary to operate as a mechanism for establishing rather than eradicating property
rights.
“From a practical standpoint, enhancing the legal validity of private ordering
could work both ways: It could certainly facilitate licensing platforms such as
(cc) and GPL, but at the same time would make restrictive terms enforceable.
Information cost analysis does not provide a sound basis for distinguishing
between the two. If there is no reason to object to the creation of a new type of
property rights through private ordering, this line of argument would equally
apply to restricting licensing schemes, which are enforceable through DRM
systems. The same rules that would make Creative Commons licenses
enforceable would equally make enforceable corporate licensing practices,
which override users' privileges under copyright law.” (Elkin-Koren, 2005 p. 60)
These are important arguments as they indicate tension points within the CC project and
as such illustrate its characteristics. Overall, and this is the third part of Elkin-Koren's
argument, the Creative Commons licensing project is far too reactive, far too defensive:
it is a potentially adequate remedy to the balancing problems of the existing copyright
system but under no circumstances a proactive solution that could contain suggestions
for future action.
Returning to Berry's and Moss's argument on CC project’s limited vision, we should
note that it is valid to the extent that the CC project does not seek to totally upturn the
private property system. It is also valid with respect to the fact that it is using a tool that
is pretty much part of the established legal toolbox, that of legal agreements.
Interestingly, Toth's (2005) and Dvorrak's (2005) critique on Creative Commons makes
the same point: Creative Commons is not offering anything substantially new; it is
nothing more than another form of legal agreement on the basis of licences and
Copyright law. This holds true with respect to the chosen form of means of the project
that is not really new; however, it leaves the substance question still open. As a matter
of fact, even before venturing into issues of substance there is a series of other questions
that need to be asked in order to fully appreciate the mix of offensive and defensive
49
meaning construction (see chapter four on the issue of meaning construction) the CC
project aims at.
To make things worse, whether the licensing procedure as whole is difficult or easy will
not make things better. If the procedure is difficult, then there is no real improvement in
the position of the copyright user, either as a licensor or as a licensee, since the
transaction costs will remain high. If the procedure becomes easier, then the individual
is accustomed to a procedure of checking the licence of a work before using it.
2.8.3 Objections to the strategy of having more than one licences
As stated above, the variety of licences the CC project offers does not really contribute
to the goal of meaning construction of the Commons that is instead significantly
undermined. By introducing a range of licences with details that are not necessarily
easily understood by the lay man, the Commons meaning is diluted. Elkin-Koren
identifies a series of further problems with the strategy of adopting multiple licences: if
the objective of the Creative Commons project is to reduce external costs from the use
of the work, i.e. costs related to the legal system of Copyrights, then its adopted strategy
faces a series of secondary problems. These have to do with the reintroduction of
external costs or legal “friction” to use Lessig's term (2001b; 2003c; 2004d). These
come as a result of the multiplicity of the licences and the lack of understanding of their
terms and conditions that make it impossible for someone to use the licences without
proper legal advice. In other words, the legal disintermediation proposed by Creative
Commons evaporates.
We have sketched above Elkin-Koren's understanding of the Creative Commons
licences: The CC licences operate as a tool for constructing a social practice of
exercising copyrights in more liberal than the normal fashion; this will eventually create
a social norm of sharing that could support the public domain. This is a rather
problematic construction in the context of multiple licences for a series of reasons: first,
because of the multiplicity of licences and the lack of a common set of core values it is
difficult to create meaning that requires clarity in the way the rights are exercised;
50
second, again because of the variety of rights, the social pattern will be created on the
level of the elements that are common in all licences in the form of the lowest common
denominator. This lowest common denominator is the autonomy of the individual to
exercise her property rights. As a result the licences in the long run will contribute to the
creation of a norm advocating property; not one supporting the commons; it will end up
in creating a norm of making people conscious they have to ask permission and seek for
the licence before they create anything rather than the opposite, i.e. not to ask for
permission when using any material.
Third, the existence of more than one licence that are not clear in their use, maintain the
legal friction instead of eradicating it: the user will always need to take into
consideration the content of the licence and, if this is not clear, the need for
intermediaries will always remain in place.
Fourth, precisely because Creative Commons uses the tools of Copyright and
particularly the tools of 21st century copyright to achieve its goals (i.e. a combination
licences and technical measures), one of its major side effects is the reinforcement of
the existing practices; it may only react to existing phenomena rather than creating the
agenda for a radical reform of copyright. Creative Commons is thus reactive not
reformative and as such it is difficult if not impossible to materialize its expressed
objectives.
Finally, these same practices are reinforced as a result of the use of technologies for the
identification of works and the respective rights in a way similar to the classic
Copyright project.
2.8.4. Need for a common principle governing all licences
The use of multiple licences that are currently mutually incompatible, as is the case with
most of the CC licences and other free/ open content licences, could fragment the
commons: if work A is licensed under CC licence x and work B is licensed under Free
licence y, and licences x and y are not compatible with each other, it is not possible to
51
create a derivative work C on the basis of works A and B. (Elkin-Koren, 2005) As such
the need for a common principle governing all CC licences emerges.
The argument of the common principle governing all Creative Commons licence has
two aspects: the first is expressed mainly by Elkin-Koren (2006a) and secondarily by
Mako Hill (2005), Moeller (2006), Berry (2006) and Chance (2006d). The crux of this
kind of argument is that the common principle is necessary in order to achieve
interoperability between the various licences. Such principles would allow content that
is licensed under licence x to be freely remixed with licences y and z provided and as
such allow the growing of the Commons. This is not the case with the Creative
Commons licences that are not compatible with each other: It is not clear which type of
licence is compatible with which other; neither is it clear whether there is both upstream
and downstream compatibility between the various versions of the licences. This holds
true not only in relation to the interoperability of CC licences with other Open/ Free
licences, such as the Free Documentation Licence, but also with respect to intra-CC
interoperability.
The second aspect of the argument relates to the construction of a minimal ethical
position through the Creative Commons licences and is primarily advocated by Mako
Hill, Moeller and Berry though a version of this argument we have already seen in the
work of Elkin-Koren in relation to the construction of meaning in the Creative
Commons project (sections 2.8.2 and 2.8.3): if there is no single set of agreed principles
governing all Creative Commons licences there is no clear objective that the Creative
Commons project seeks to achieve and as such there is no clear identity of the project
itself. Mako Hill contrasts in that sense the Creative Commons project with the Free
Software Foundation project or the Debian group. Mako Hill positions the discussion in
the level of defining a set of essential freedoms that should run all the licences and
argues that the “freedom of choice” which is the only clear set position of the Creative
Commons project is closer to the proprietary movement rather than the Free Software
Foundation principles of free access. Mako Hill's argument thus produces the same
result as the Elkin-Koren's arguments seen in the previous sections: Creative Commons
is closer to being a proprietary rather than a Commons project and though claiming to
translate the principles of Free Software in the context of content, it systematically fails
to do so. The latter part of the argument is also supported by Stallman who is clear that
52
not all CC licences conform to the standards of freedom of the FSF project and
consequently withdrew his support to the CC project.
2.9 Conclusion
In this chapter we had the opportunity to illustrate the core features of the CC project
(section 2.1) and follow the basic arguments constituting the critique of the CC project
mainly as expressed in Elkin-Koren's work but also as found in the writings of other
authors (section 2.2). In summary, the critique seems to be following the same
ontological presuppositions as the work of Lessig's we will explore in detail in chapter
four, particularly the fact that the Commons are constructed, that the CC project is
primarily focused on their regulatory conditions and that they are still susceptible to
change (sections 2.3 to 2.5). The critique focuses mainly on the ideological fuzziness of
the project that when investigated more closely reveals a certain tendency towards the
protection of the autonomy of the author, views the Commons as a standing reserve and
echoes a certain degree of regulatory libertarianism (sections 2.6 and 2.7). This
ideological fuzziness or regulatory liberalism is particularly harmful for the construction
of a coherent meaning of the Commons and may be proven detrimental to the
materialization of the objectives of the CC project. It is supported by and reflected on
the use of multiple licences as the primary tool for the achievement of the Commons
(section 2.8).
This critique of the strategy and means used by the Creative Commons project in order
to achieve its objectives focuses particularly on the effects of the CC licences on the
way in which Commons are constructed (section 2.8). We identified three types of
arguments: first, arguments against the use of licensing all together (sections 2.8.1 and
2.8.2); second arguments against the use of more than one licence (section 2.8.3); and
third arguments against the use of multiple licences that are mutually incompatible with
each other (section 2.8.4). All three arguments have two dimensions: one related to the
costs the CC licences entail for the creator that seeks to embark to secondary uses of a
creative work and a second one related to the way in which the use of licences
contributes to the support or is to the detriment of the construction of a Commons.
53
Aim of this section has been to highlight the elements of tension within the Creative
Commons project without assessing their validity or the reasons why such tensions have
emerged. Such is the task of chapter six that deals specifically with the analysis of the
CC case. However, before venturing to the particulars of the CC project we need to
explore the overall interaction between Copyright and technology and its implications
that is the focus of the following chapter.
54
Chapter Three Critical Literature Review
3. Introduction
The objective of this chapter is to present the circumstances that gave rise to the
development of the CC project through a critical review of the relevant literature. It
starts with a brief account of the relationship between digital technology and copyright
to illustrate the fundamental features of their dialects. This chapter presents two sets of
issues related to their interaction: the first emerges directly from the effort of copyright
to protect existing rights holders from new reproduction and dissemination technologies
(section 3.1); the second refers to the overall impact such an effort has upon the balance
of rights between different stakeholders as expressed in different national copyright
laws, regional legislative instruments and international treaties and conventions (section
3.2).
In order to appreciate the complex interrelationships between technological change and
the evolution of Copyright this chapter explores the Public Domain and Commons
discourse as related to Intellectual Property Rights and Copyright in particular. It
explains the importance of Commons for the support of innovation and creativity in on
line environments and focuses on the links between the Commons and
Environmentalism (section 3.3). This leads to an account of the implications that the
conceptualization of the Commons as a constructed notion has (section 3.4). The
chapter then presents different conceptualizations of the Commons (3.4.1.) and the role
Free Software plays as model for understanding the Commons (section 3.4.2.). The
following section (section 3.5) illustrates three definitions of the Commons, by Benkler,
Lessig and Boyle and explains how multiple definitions of the Commons are expressive
of different needs and objectives. The chapter concludes (section 3.6) with a
presentation of a series of concepts, such as the distantiation phenomenon, we have
developed in relation to Copyright and digital technologies interaction.
55
3.1 Patterns of Copyright and Digital Technologies interaction
The relationship between technology and law has been contentious ever since
Copyright's inception [see e.g. (Rose, 1993)(Littman, 1989)(Jaszi, 1991)(Rose, 1994)].
Certain authors [e.g. (Ellickson, Rose and Ackerman, 1995; 2002; Rose, 1994; 2003a);
(Rose, 2002)(Boyle, 1992; Boyle, 1996; 1997a)] have identified technology as one of
the key factors driving directly or indirectly Copyright's evolution. In this chapter we
focus on the introduction of digital technologies as the most important for this thesis
episode in the series of technological innovations that have accompanied Copyright
since the time of its inception.
The development of digital technologies is of such great importance for Intellectual
Property Rights because it entails the introduction of a set of technologies that are both
threatening the preservation of and are competing with existing revenue models
(Espinel, 1999; Gordon, 1989; Hugenholtz, 1996; 1999; Ku, 2002; Kurtz, 1996; Litman,
2001; Littman, 1989; Lunney, 2001; Maxwell, 2004; Reichman and Ulhir, 1999;
Samuelson, 2001; Vaidhyanathan, 2001; Vinje, 1996; 2000; Webber, 2005; Wiese,
2002; Zemer, 2006). To a great extent these technologies initiate a regulatory response
which for the first time aims directly at the end user and marks a departure from the
existing regulatory forms that have been mainly focused on professional creators and
infringers. This stage in the development of digital technologies refers to the capacity of
reproducing and disseminating content with minimal marginal costs (Barlow, 1994;
Benkler, 2002; 2006; Bollier, 2001; Dyson, 1995; Ghosh, 1997; 1998; Goldhaber, 1997;
Hietanen, Oksanen and Valimaki, 2007; Hugenholtz, 1996).
The minimization of costs occurs in two stages: in the first stage the reproduction of
copies of identical quality as the original is made possible. The costs of reproduction for
each copy are in a digital environment virtually zero with no quality differentiations to
the originals as in the case of the analogue copies. The second stage in the development
of such technologies relates to the gradual lowering of costs for the equipment of
reproduction of digital material (Hardy, 1996). Costs of computing equipment that are
the primary means for reproduction of digital material follow a constant pattern of price
dropping whereas the processing power keeps increasing. Such developments combined
with the advent of the Internet and its constant growth over the last one and half decade
has rendered the spread of reproduction technologies pervasive. We will not focus on
56
the specifics of the expansion of such technologies and their features that has been done
quite thoroughly by many theorists of technology society and law (Post, 1995; Biegel,
2003; Benkler, 2006; Boyle, 1997a). The features that are relevant for this section relate
to the nature of infringement, creativity and distribution of content that such
technologies allow.
The first point to make is that these technologies radicalize the level of the
infringement. Reproduction takes place in a genuinely mass scale but in micro level, it
is a mass-micro infringement and is done for non-commercial purposes (Biddle,
England, Peinado and Wilman, 2005; Lastowka and Lastowka, 2006; Liang, Kumar, Xi
and Ross, 2005; Liebowitz, 2006; Oberholzer and Strumpf, 2007; Hugenholtz, 1998).
This is due to the extreme low cost of technologies of reproduction as well as due to the
availability of services that connect users with each other for the sharing of content
without any direct commercial benefit. This is a particularly important aspect of the
digital era infringement landscape and it requires some further explanation (Ku, 2002).
One of the features of digital technologies that separates them from all other forms of
previous technological developments is the ability they provide to the users for many to
many communication and exchange of digital information, that is, information that may
be accurately replicated with zero cost (Ku, 2002; Litman, 2004). In previous advances
in reproduction and dissemination technology, even if reproduction in the lower parts of
the supply chain was possible (as is the case with the analogue tape) two distinct
features of the digital networks technologies were absent: first, the quality of the copy
was inferior to that of the original and second, the infringing networks followed a
structural pattern similar to the one of the legal supply chain. In other words, the end
user did not have access to the entirety of the repertoire through the informal exchange
of material with her friends because of the limited social horizon of each person. For a
broader collection of material the infringing end user would have to use some sort of
commercial infringing service which brings us back to the classic middle-high level
infringement we may see in the previous stages of the technology developments and
respective copyright responses. On the contrary with digital technologies none of these
assumptions holds true any more. The copies are perfect and the distribution network is
based on non commercial providers of material (Biddle, England, Peinado and Wilman,
57
2005; Lastowka and Lastowka, 2006; Liang, Kumar, Xi and Ross, 2005; Liebowitz,
2006)(Oberholzer and Strumpf, 2007; Boyle, 2000).
The Napster case is an iconic example of this new form of infringement (Berkman
Centre For Internet and Society, 2005; David G. Post, Annemarie Bridy and Sandefur,
2005; Dhand and Carson, 2000; Ganley, 2006; Ku, 2002; Lange, 2003b; Lastowka and
Lastowka, 2006; Liebowitz, 2006; Litman, 2004; Lucas, Bernault and Lebois, 2005;
Lunney, 2001; Merges, 2004; Miller, 2006; Mueller, 2006; Yu, 2005; Ku, 2002;
Andrews, 2005; Huff, Nickel and Jennings, 2006; Oberholzer and Strumpf, 2007): it
provides a service for individual infringers to be able to find others and share the
relevant material. The judicial response to such infringement in the U.S. legal system
has been in accordance to the pattern of responses also seen in earlier Copyright history
in the sense of targeting the intermediary rather than the actual infringer (Lieb, 2005).
However, the regulatory responses we have seen ever since as well as the subsequent
litigation campaigns initiated by the audiovisual industry are indicative of a change in
the pattern of regulatory responses we have experienced up to this stage: the actual
primary infringer in the end of the supply chain is now targeted directly (Andrews,
2005)(Ganley, 2006; Lastowka and Lastowka, 2006; Lucas, Bernault and Lebois, 2005;
Merges, 2004; O'Hara, 2003-2004; Piasentin, 2006; Witt, 2005). This has been seen
primarily in the litigation campaigns against individual users; the introduction of cease
and desist procedures for infringing material and the issuing of the relevant notices; the
introduction of liability for the infringer irrespective of the commercial intent; and the
introduction of criminal liability provisions irrespectively of the commercial intent or
level of damage for the copyright holder (Witt, 2005; Huff, Nickel and Jennings, 2006).
All such developments aim directly at a new type of infringement that is not undertaken
by professionals neither it is conducted in a commercial level. The regulatory response
to such characteristics had thus to be fundamentally different from all previous types of
copyright regulations that were solely focused on professional infringers. Existing
regulator measures were not deemed adequate and a further breaking down of the
regulatory structure was attempted. Before however venturing to that part of the
regulatory response we need to refer to yet another feature of the digital technologies
and to highlight some of the regulatory issues it raises.
58
Another point to be made in relation to these new technologies relates to the creative
dimension of the infringement they induce (Boyle, 2003c; Benkler, 2000; 2002; 2003b;
2006)(Lessig, 2002a; 2002c; 2002d; 2003c; 2004b; 2004d). In a sense, this is a pattern
of infringement that continues what initially appears in the case of the audiotapes and
unlicensed broadcasting but in far larger scale. In the latter of these technologies the
infringement taking place had minimal creative elements in the sense of how the
reproduction or broadcasting of material was compiled and recombined in different
forms. In those cases, potential new composite, derivative or collective works were
introduced as a result of the recombination of creative contributions for which no
licence was secured. This is a phenomenon that in the world of analogue technologies
may have occurred but in a non systematic and unstructured fashion (Lastowka and
Lastowka, 2006; Liebowitz, 2006; Strahilevitz, 2003).
The recombination of existing material becomes in the digital world the norm rather
than the exception (Benkler, 2000; 2002; 2003b; 2006)(Boyle, 2000; Boyle, 2003a).
The examples of the hyper-linking legal cases and relevant academic literature are
illustrative of the whole problem. The idea of the World Wide Web is that of associating
material with each other (Berners-Lee and Fischetti, 2000). Further to that, the original
simple first generation peer-to-peer technologies were gradually superseded by more
advanced ones that focused on particular communities of interests. Torrent-trackers
identifying the relevant material have provided not merely the content but also a series
of value added services like comments on the relevant content or additional material,
multiple versions and even unpublished material that were never made available to the
public through legitimate channels of dissemination (Strahilevitz, 2003; Feldman and
Nadler, 2005; Schultz, 2006; 2007).
In the latter part of the 1990s and in the first decade of the 21st century the continuous
dropping of prices for digitization technologies has also made possible the conversion
from analogue into digital format of material irrespective of the intent of its original
rights holders (Boyle, 2000). Such process besides its apparent Copyright infringement
part, contains many creative elements ranging from simple add on elements to the
complete transformation of the work. Whole popular music genres like Bastard Pop
were based on illegal mixing and mashing of material. Moreover, the development of
59
technologies like radioblogs, online streaming services like YouTube and GoogleVideo
and podcasting made the creation of playing lists which essentially are compilations of
infringing and non-infringing works available on a many to many basis.
In such an environment of radically decentralized non commercial and often creative
infringement the regulatory response has been structurally fundamentally different from
what we have seen in former parts of Copyright's history (Rose, 1994; Rose, 1993;
2002; Ellickson, Rose and Ackerman, 2002; Field, 2003; Fisher, 2001). The
radicalization of copyright infringements has provoked an equally radical regulatory
response. Two are the primary features of such radicalization: (a) reliance on legally
binding agreements (contracts and licences) (Hugenholtz, 1996; Elkin-Koren, 1997;
1998; Litman, 1994; Ginsburg, 1995; Littman, 1998; Littman, 1997) and (b) use of
technologies of enforcement (such as Technical Measures of Protection) with legislative
support (such as the WIPO treaties) (Akester, 2006; Dussollier, 1999; Gillen and Sutter,
2004; Kirkman, 2006; Koelman, 2000; Kruger, 2006; Lai, 1999; Litman, 2001; Lunney,
2001; Samuelson, 1999b; 2003; Turnbull and Marks, 2000; Vinje, 1996). Both elements
have their origins in the licensing practices of protection and dissemination of software
(Fitzgerald, 2001).
The sections of copyright laws referring to software protection have their origins in the
contractual practices of software dissemination. This is one of the reasons why the
relevant chapters in the respective national copyright laws differ from the provisions
referring to more traditional works. The interesting part in this development is that the
regulation follows an already established practice that is then further reinforced through
the implementation of the relevant legislation (Dussollier, 1999; Gillen and Sutter,
2004; Samuelson, 2003). This pattern of regulatory response reemerges in the case of
legislative support for the Technical Protection Measures.
Such legal agreements were primarily manifested in the form of End User Licence
Agreements (EULAs). EULAs or a “bare” or “naked” licences have been the preferred
instrument of choice because of their ease of application in mass standardized
distribution environments where specific rules governing the use of the product were
desired (Littman, 1997; 1998; Hugenholtz, 1998). A naked licence appears in the form
of a permission to use the copyrighted material without requiring [in a series of
jurisdictions (mainly the UK and the US where the biggest software markets existed at
60
the time of introduction of such instruments)] consideration and acceptance as would be
the case with a contractual agreement. Such strategy was initially adopted in order to
override problems of acceptance in cases where (a) the two parties are not physically
present and (b) the agreement is addressed to a not predefined number of people
(Littman, 1997).
The shrink-wrap licences were the first incarnation of such a means (Elkin-Koren, 1997;
Elkin-Koren, 1998; Gruettmueller, 2003b; Ohlerich, 2003; Reichman, 1999). They
derive their name from the fact that the user was deemed to have conceded to the terms
of the licence once tearing the wrap of the software. Such licences were “turn key”
agreements in the sense that the licensee could either accept them or not. Their terms
were not to be negotiated by the parties. In the mid 1990s, in the process of being
transposed into a digital networked environment such agreements were transformed to
what is referred to as “click use” or “click through” licences: the end-user was now
indicating her acceptance of the licence terms by clicking through the different screens
or pop up windows presenting the relevant terms and conditions (Littman, 1997; Lloyd,
2004).
The academic literature has expressed its skepticism regarding the legal enforceability
of such licences (Littman, 1997; Elkin-Koren, 1997). The main concerns related to the
absence of consideration by the recipient of the licence. In the case of shrink wrap
licences the skepticism was rather natural considering that the user first opened the
wrap, and was committed to adhere to the terms of the licence, and then had the
opportunity to actually read them. In the case of the click through licences the case was
slightly better in the sense that the licence wizard would not proceed with the
installation or the downloading unless the user has clicked the agree button. In some of
these licences the user would not have the opportunity to continue with the installation
unless she has actually gone to the end of the licence.
Other concerns had to do with the content of some of the terms of EULAs, which were
possibly contrary to public law provisions and were as such void. The main type of
provision of such kind was related to the waiving of liability of the licensor, third parties
obligations, waivers of users' rights, and faults in the product or the delivery of services.
Finally, another important category of provisions in the licences causing substantial
61
issues was related to the applicable jurisdiction, the competent courts and even the
language in which the licence was written.
Licence drafting throughout the 1990s and after 2000 has evolved in a substantially
degree and has addressed most of these problems (Reed and Angel, 2003; Lloyd, 2004).
Especially in relation to the enforcement of terms that were not part of the already
established Copyright law the development of or reliance on other auxiliary legislative
frameworks such as commercial codes and contract law has been of particular
importance for ensuring the enforceability of the relevant licences (Elkin-Koren, 1997;
1998; Dusollier, 2006; Hansmann and Kraakman, 2002; Hugenholtz, 1998; 1999;
Hugenholtz and Guibault, 2004). The internationalization of most of the transactions
after the advent of the Internet has also led to the production of multiple versions of the
licence for the same product in different countries such is the case with Microsoft
software; the reliance on licences that had terms drafted broadly enough to be construed
in most of national courts; or finally the definition of the competent courts and relevant
jurisdiction in accordance to the wishes of the licensor.
The use of End User Licence Agreements was not very common in the case of content
other than software precisely because of the nature of the product. Copyright notices
appeared on the covers of books or in the introductory screens of DVDs or video tapes
but these were more in the form of a notice than of an actual licence. This was due to
the fact that much of the uses of content in the analogue environment were left
unregulated. However, with the introduction of digital technologies as many
commentators indicate [e.g. (Benkler, 2000) or (Lessig, 2005k)] the use of the material
increasingly amounts to copying. As a result the owner of the content has the right to
define the uses of the content in ways that were not possible in the past. This immense
expansion of actual possibilities for the rights holders, while the letter of Copyright law
has not changed is partially responsible for the introduction of EULAs in relation to the
use of on-line content as well. Another factor that led to such development has been the
excessive infringements by end users. The digital networking technologies gave the
opportunity for more infringement but also provided the means for more aggressive and
extensive exploitation of the work. This related not merely to the ways in which it could
be disseminated and packaged but also in the ways in which its use could be limited.
62
Virtually all uses of the work gradually became regulated uses in the digital
environment.
As Jack Valenti said in his hearing in front of Congress regarding the VHS issue in
early 1980s (Valenti, 1982), “a right which is not protected is not a right”, and the
immense actual scope of rights that the copyright owners acquired with their transition
in the digital environment could not be fully exploited without a regulatory framework
that would allow the maximum enforcement of their rights. The idea of technologies of
Digital Rights Management (DRM) had precisely this kind of function. It needs to be
highlighted at this stage that as many commentators have highlighted the main operation
of the DRM related Copyright provisions were not so much an attempt to fight existing
infringement issues but rather to pro-actively legislate in order to ensure that the
existing rights holders would agree to place their works legally on the new digital
platforms (Litman, 2001; Ginsburg, 2001; Dussollier, 1999; Samuelson, 1999b; 2003;
2005b).
The EULAs provided a first expression of the way rights holders would like their works
to be used; however, there was also the need for a series of technical measures that
would actually protect desired uses and prevent any unauthorized ones. These technical
measures then required to be interfaced with the law in such a way so that there would
not be attacked by other technologies designed to circumvent them. The idea was to use
technical means to prevent access to copyrighted material supported by legislative
means designed to prevent circumvention of the technical means.
The WIPO 1995 Internet Treaties (Boyle, 2004; Colston, 2002; Gillen and Sutter, 2004;
WIPO, 1986) are the first regulatory instruments where provisions related to the legal
protection of TPM were passed. Analyzing the exact wording of the relevant Treaties
provisions is beyond the scope of this thesis, however, the fact that it was in the
International rather than the national level that such provisions were firstly introduced is
expressive firstly of the acknowledgment of the global dimension of the problem and
secondly -and most importantly for the purposes of this thesis- the top down approach
that was followed for implementing such provisions. It was not the nation states that
made the decision first and international organizations followed but rather the opposite.
When nation states or regional blocks like the EU have signed the relevant treaties they
were then obliged to implement it in one way or another but were definitely bound to
63
actually implement some sort of technical measures legislation. The introduction of a
totally new right on the protection mechanism rather on the actual work provided the
right holder with an immense scope for drafting her own version of rights on the
content.
Precisely because of the opportunities for radically decentralized mass micro non
commercial infringement that the digital networking technologies have introduced the
regulatory response has been one of an equally radical nature. It has not been one of
providing a definite solution to the hands of the rights holders in the sense of providing
the actual detailed solution or response. On the contrary, it has provided them with the
tools to design their own versions of micro-regulation and then with the legal means of
enforcing it when someone attempted to violate it. This is the idea of the Technical
Protection Measures (TPM) provisions in the WIPO treaties (Adams, 1993; 1997;
Boyle, 2004; Cohen, 1999; Colston, 2002; Fitzpatrick, 2000; Gillen and Sutter, 2004;
Reinbothe, 1997): an international instrument that leaves no great boundaries of
discretion to the signatory countries for implementing a legislation that will then allow
the owner of the rights to create their own micro-regulation and protect it with civil and
criminal provisions. A really macro-regulatory tool like that of an international
convention is combined with the micro regulatory tools of the technical measures of
protection for achieving a proactive regulatory result.
This bring us back to the way the combined EULAs and TPM operate in a networked
environment (Akester, 2006; Dussollier, 1999; Gillen and Sutter, 2004; Kirkman, 2006;
Koelman, 2000; Kretschmer, 2003; Kruger, 2006; Lai, 1999; Litman, 2001; Lunney,
2001; Samuelson, 2003; Turnbull and Marks, 2000; Vinje, 1996; Wu, 2003). Contrary
to other regulatory creatures that are built by the state, the regulatory content of such
formations is defined by the owner of the right and relates to a particular work. With
reference to their technical part, they are directly enforceable as the user is not able to
really argue with the technology that allows her only certain acts. In addition, though
they are in the form of a private agreement depending on the popularity of a product or
of a class of products that are governed by the same type of licence, they may have an
effect on millions or tens of millions of users. Finally, despite their extent of application
they are individually enforceable and implemented. Unlikely other forms of regulation
that their force is only indirectly felt, as is the case with the regulation of contributory
64
infringement or liability clauses, in this case the combination of legislation and the
relevant licences makes them micro enforced. This is the reason why this type of
regulation is referred to in this thesis as mass micro regulation.
3.2 Secondary effects of technological change: imbalances in
the allocation of rights
The accumulative effect of digital technologies and the respective Copyright changes
has caused a serious disturbance in the balance between (a) existing and potentially
future rights holders and (b) rights holders and users of the protected subject matter
(Astle, 2005; Hugenholtz, 2000b; Kretschmer, 2003; Lieb, 2005; Samuelson, 1999b;
Regents Of The University Of California, 2003; Dussollier, 1999; Hugenholtz, 2000a;
Koelman, 2000; Lunney, 2001; Samuelson, 2005a; Vinje, 1996; Hugenholtz, 2000b).
We call this class of effects secondary as they do not emanate directly from technology
but rather from the accumulative result of both technology and regulatory changes
(Boyle, 2003c). The main cause of such disturbance has been twofold: on the one hand
the gradual expansion of rights as a result of new technologies or new forms of rights
exploitation has led to an unprecedented expansion of the scope and ambit of
copyrights; on the other hand, as explained above, the transition from an analogue to a
digital environment has rendered a number of uses that were in the past irrelevant for
the purposes of Copyright law to be now under its scope. For instance, whereas viewing
the content of a book or the number of times of viewing a book would not be relevant
for the classic copyright law, in the case of digital environment precisely because such
viewing would require reproduction, it would be regulated by Copyright law (Lessig,
2004d). The point that needs to be stressed out at this stage is that much of the
imbalance occurring in the digital environment is not the direct result of the changes
made post 1995, i.e. after the WIPO Internet treaties (Boyle, 2004). The latter have
amplified the phenomenon, but its roots may be found in the constant Copyright
amendments responding to technological changes that occurred ever since copyright's
inception (Adams, 1997; Adams, 1993) and the fact that a series of uses related to
copyrighted material de facto involve copying.
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The discourse linked to the Copyright imbalances is primarily related to the Public
Domain or the Commons discourse. Such discourse refers to the more fundamental
problem of the extent to which copyright in its current form provides the necessary
incentives for the production of Intellectual and Creative works or constitutes instead an
obstacle to creativity and innovation. This debate has evolved originally around the
introduction of the publicity right in the United States Copyright jurisprudence that has
raised even since the late 1960s and 1970s concerns regarding the viability of the public
domain (Brown, 1976-77; Chafee, 1945; Kaplan, 1966; Krasilovsky, 1967; Lange,
1981). The discourse has been further complemented with work that examined the
erosion of rights as a result of the constant expansion of the Copyright term that makes a
series of works (particularly databases in the EU) virtually perpetually protected
(Lessig, 1999a; 2001b; 2003c; 2004c). The extension of the Copyright term in the
United States has been the occasion that brought about the Creative Commons project
and caused a more orchestrated effort to protect what was perceived as the Public
Domain or the Commons (Jones, 2004; Schwartz and Treanor, 2003; Stratton, 2005)
(Lessig, 2004b; 2004c).
Another branch of the discussion in relation to the Copyright issues resulting from its
overexpansion in conjunction with the digital networks technological developments has
to do with the increasing uncertainty and legal friction in the transactions related to
copyrighted works. The argument of this stream of the Commons debate relates to the
abolishment of any formalities for granting protection of copyrighted works in the
1980s in the United States (Merges, 1997; Lessig, 2004d; Geist, 2006; Vaidhyanathan,
2001). The idea is that because of the expansion of the subject matter, the works that are
protected under Copyright law are constantly proliferating. In addition, since no
formalities are required for the granting of Copyright, it seems that for any work to be
used it is necessary to obtain permission from the rights holder in advance.
In the digital environment it is not merely the violations that have increased but also the
potentials for the emergence of new creators. These new creators use much of the
preexisting material and as such require permissions from the respective rights-holders.
In the same way that infringement has ceased to be a professional activity, the creation
of new works has also been increasingly a non-professional activity. As a result, an
increasing amount of permissions needs to be obtained in order for creative activities to
66
be exercised (Samuelson, 1999a). This is what is often described by the Commons
theory as “legal friction” in the production of creative works (Lessig, 1999b; 2001b;
2004d). The main idea behind the Commons and Public Domain literature is to work in
order to devise models that may be employed in order to eliminate or reduce such legal
friction deriving from uncertainty risks, risks from finding the original owners of the
works and paying the legal fees required to obtain the relevant advice (Benkler, 2001;
2002; 2006; Boyle, 1997a; Boyle, 2003a; 2003c; Fisher, 2004; Gupta, 1985;
Hugenholtz, 2000b; Lange, 1981; 2003a; Lessig, 2001b; Moglen, 2003; Samuels, 1993;
Creative Commons, 2003; Baron, 2002; Bollier, 2001; Boyle, 1992; Reichman and
Ulhir, 2003).
A particular stream of this kind of literature deals with the ways in which scientific
publications take place and could be done in a way that reduces such frictions (Baca,
2006; Gonzalez, 2005; González, 2006; Gruss, 2003; Hugenholtz, 1996; Reichman and
Ulhir, 1999; Wilbanks, 2005; Rai, 2004). Another equally important stream deals with
the way in which orphan works, that is, works whose rights holders cannot be identified
could be made available to the public (Brito and Dooling, 2005; Huang, 2006). A final
stream of the literature concerning public domain deals with issues of how different
forms of licences may be employed in order to construct a public domain (Reichman
and Ulhir, 2003; Elkin-Koren, 2005; 2006a; Dusollier, 2006; Purdy, 2005). To
appreciate the way in which such licensing scheme came about and where the Creative
Commons project fits into such a picture we need to revert to the issue of public
domain, appreciate its origins and view the Creative Commons project and its expressed
objectives as part of this greater debate. The critique that CC has received from a series
of commentators with Elkin-Koren (Elkin-Koren, 2005; 2006a) holding the most
prominent place is useful for an appreciation of its basic characteristics. Such
characteristics emerge as the most contentious features of the CC project and in that
sense they constitute the departing point for this study.
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3.3 Intellectual Property Rights Environmentalism and the
Commons
A paper that has exercised particular influence in the way in which the Public Domain
and IPR literature has evolved, and in that sense is particularly relevant to this thesis, is
James Boyle’s “A Politics on Intellectual Property: Environmentalism on the Net”
[hence, Environmentalism](Boyle, 1997a). The Environmentalism paper is of particular
interest for two reasons: First, it “argues that we need a politics, or perhaps a political
economy, of intellectual property”. The idea of requiring a coherent policy on
Intellectual Property and indeed one advocating the preservation and expansion of
public domain reminds us of the much later paper of Elkin-Koren (2006a) and draws
from Boyle’s book published a year earlier under the title “Software Shamans and
Spleens: law and the construction of information society” (Boyle, 1996) . The problem
that Boyle identified in 1996 (1996) and again restated in 2003 and 2004 (2003b; 2003c;
2004) still remains a problem: “[t]he terms "public domain" and "commons" are used
widely, enthusiastically, and inconsistently.”
This brings us to the second reason why the Environmentalism paper is so important:
Boyle argues that indeed we need some coherency in the way we approach the problem
of the effects of IPR overexpansion on creativity and innovation and, in that respect,
there is great deal we may learn from the environmental movement. It is instructive to
deconstruct Boyle’s suggestion.
Another paper written by Boyle, a book review of David Goldblatt’s “What the Left has
to Say” (Boyle, 1997b), provides a good introduction in his understanding of the merits
of environmentalism. In this review, Boyle suggests that the greatest of Goldblatt’s
book virtues is his suggestion to examine what the social theory could learn from
environmentalism, rather than the other way around:
”The environmentalist holding a cost-benefit study on the effects of killing off
the snail darter, must live out that theoretical experience on a daily basis. In fact,
when one looks at the challenges that environmental problems pose to our
conceptions of property rights, our understanding of the market, our attitudes to
nature, social rationality and culture, it is hard not to conclude that the real
question is not "what can social theory do for environmentalism," but rather the
reverse.” (Boyle, 1997b p. 247)
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Indeed, this is what Boyle attempts to do with Environmentalism. He first establishes
that Intellectual Property Rights is what he calls “the form of Information Society”:
“In terms of ideology and rhetorical structure, no less than practical economic
effect, intellectual property is the legal form of the information age. It is the
locus of the most important decisions in information policy. It profoundly affects
the distribution of political and economic power in the digital environment. It
has impacts on issues ranging from education to free speech. The "value"
protected by intellectual property in the world economy is in the hundreds of
billions of dollars and growing all the time.” (Boyle, 1997b Section II)
In other words, Boyle first explains why the public domain and IPR issues are of such
magnitude that would justify a movement similar to the environmental issue and
second, suggests that we should learn from the environmental movement in order to
deal with these problems.
There are two types of lessons we may take from the environmentalist movement. One
has to do with the intellectual commons or public domain itself: what is public domain,
in what sense it is similar to the environment and what kind of consequences a possible
exhaustion may have on us as a society. A second one has to do with the features of
environmentalism as a movement: what kind of features does it have and which ones
may we replicate for the purposes of preserving the public domain.
In answering both these questions, Boyle has been greatly influenced, as he himself
admits, by the work of David Lange (1981; 2003a) on public domain. David Lange is
also one of the co-directors of the Centre for the Study of the Pubic Domain (2006) and
has been a member of the Duke Law faculty for more than thirty years holding the same
chair as Boyle after him.
David Lange with his “Recognizing the Public Domain”, provides an invaluable first
systematic collection of the works dealing with the public domain. Mainly influenced
by the work of Kaplan (1966), Krasilovsky (1967), Chafee (1945) and Brown (1976-
77), Lange presents the problem of defining public domain (1981).
Lange (1981) refers to the public domain also as public commons (ft. 20) and also uses
Krasilovsky’s (1967) classic definition :
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”Public domain in the fields of literature, drama, music and art is the other side
of copyright. It is best defined in negative terms. It lacks the private property
element granted under copyright in that there is no legal right to exclude others
from enjoying it and is “free as air to common use”
Krasilovsky references will lead us to Brown’s (1976-77) work and his references to the
public domain about ten years after Krasilovsky’s paper. Referring to Justice Brandeis’s
dissenting opinion in International Services v. Associated Press, 248 US 215, 250
(1918) he will provide another paradigmatic quote on the concept of public domain:
“The general rule of the law is, that the noblest of human productions –
knowledge, truths ascertained, conceptions and ideas- become after voluntary
communication to the others free as the air to common use”
The idea of public domain as being a “commons” similar to “free as air” seems thus to
be coming from the beginning of the 20th century, however the exact ambit and scope of
the concept remains an issue even in the 21st (Benkler, 1999). In a special issue of Law
and Contemporary Problems in 2003 (Boyle, 2003a), some of the most important
academics will provide different aspects of what constitutes public domain and how it
may be retained. The quote of Justice Brandeis will be repeated by numerous scholars,
Boyle (2003a) and Benkler (2003a) not least among them.
3.4 Copyright and the Commons as constructed entities
Before we proceed with talking about environmentalism and the public domain, we
need to highlight a very special property of the public domain that makes the quest for
what constitutes the intellectual or creative “environment” an equally special question.
As Lange notes in his Recognizing the Public Domain (1981), Intellectual Property and
copyright more specifically are very particular species of property as they are
constituted as a result of the law rather than the senses:
“The chief attribute of Intellectual Property is that apart from its recognition in
law it has no existence of its own. It is in fact as well as in definition the stuff of
an intellectual, rather than a feeling accord. Lacking tangible substance
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altogether, its boundaries cannot be recognized through the medium of human
senses.” (Lange, 1981 p. 147)
This observation, though obvious to anyone who has studied Intellectual Property Law,
has a profound impact on the way the public domain may be constructed. To put it very
simply, a book, for instance, exists as a physical artefact, but the Copyright subsists on
the original creative form in which the book is expressed. The boundaries of the subject
matter of copyright are purely the result of law, legal theory and the relevant case law.
In that sense the concept of copyright is a constructed concept (Littman, 1991; Wagner,
2003; Fisher, 1999; 2001; 2002). Not surprisingly, the Public Domain, that has been
described as “a negative form of property” is equally a constructed concept. As Mark
Rose (2003b) notes in some of his writings (Rose, 1993; 2002) and particularly in the
same volume as Boyle, “[c]opyright and the public domain were born together.” (Rose,
2003b p. 76)
Environmentalism in relation to Intellectual Property Rights becomes thus an issue of
protecting something that is constructed. More than that, it becomes an issue of how the
concept of the Public Domain is to be constructed. Since the original concept of
Intellectual Property is constructed by the law, a similar construction in legal terms is
needed for the Public Domain, and not necessarily in the form of a negation of property.
This is the point that Lange makes at the closing of his classic paper:
“The problems will not be solved until courts have come to see the problem of
public domain not merely as an unexploited abstraction but as a field of
individual rights fully as important as any of the new property rights. The field
of intellectual property. The field of intellectual property law at large sometimes
seems to be beyond the possibility of exhaustion. But then, that was the view
taken by the public toward the buffalo as they were being hunted one hundred
years ago. And where are the buffalo now?” (Lange, 1981 p.180)
Again we will underline the duality of the problem as expressed by Lange: On the one
hand, Public Domain is a legal fiction that needs to be constructed in a positive way in
the form of rights that need to be protected. On the other hand, this needs to be done
urgently as it will otherwise lead to side-effects of the same magnitude as the ones
related to ecological disaster we have experienced with physical environment.
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The heavy reliance on the term “constructivism” may give the impression that the
intellectual property environmentalism is radically different from the nature
environmentalism that refers to actual things. This is certainly not the case.
On the contrary, the reason why the metaphor of Environmentalism has been suggested
and adopted by a number of scholars as the most appropriate one, is partially due to the
fact that the concept of “Environment” is also a constructed concept.
The need for a kind of a movement is apparent in the work of Boyle (1997a) that talks
of “information politics” in terms of a coherent movement for the protection of the
public domain. According to Boyle (1997a), one of the main contributions of
Environmentalism has been the highlighting of the structural or deeper problems related
to the issue of environmental abuse.
This is a particularly important remark. An environmental movement is important as a
metaphor for the Public Domain as it will operate as a vehicle for revealing the
structural presuppositions that prevent its emergence. For Boyle the current IPR system
contains presuppositions that make the preservation of the Public Domain very difficult.
More than that, Boyle’s point implies that the concept of environment itself was not
clearly defined either and its conceptualization is one of the major contributions of the
environmental movement. The two steps in the process are clearly presented in Boyle’s
argument: first the concept is created and then it becomes a reality. We need to highlight
Boyle’s point that in order to create such meaning, it is important to have in place the
relevant analytical tools that could become “popularisable’, so as to be usable by anyone
and as such to facilitate the creation of meaning . Lessig is making a similar call in
1998, in his New Chicago School paper (Lessig, 1998d), though he refers more to the
need for analytical tools for the understanding of new forms of regulation and meta-
regulation.
Equally interesting is to follow some of the suggestions that Boyle makes for the
creation of a Public Domain movement. Following the Environmentalism movement, he
suggests that we adopt the practice of existing movements and create organizations
similar to the Green-Peace that could carry forward the objectives of preserving the
public domain. Less than ten years later, in a follow up of the Environmentalism Paper,
the Second Enclosure paper in 2003 (Boyle, 2003c), the same author will recognize the
72
existence of a series of efforts of that kind as well as his personal involvement in some
of them. The role of all these organizations is to construct or to invent the notion of
public domain in the same way as environmentalism invented the notion of
environment:
“In one very real sense, the environmental movement invented the environment
so that farmers, consumers, hunters and birdwatchers could all discover
themselves as environmentalists. Perhaps we need to invent the public domain in
order to call into being the coalition that might protect.” (Boyle, 2003c In
Conclusion)
In the process of constructing the Public Domain, Boyle places particular emphasis on
the development of an economic theory that would support its viability especially in
juxtaposition to models supporting the existing structure of rights. However, what is
most important for the purposes of this thesis is the emphasis that Boyle places on the
political debate abound decisions related to Intellectual Property Rights and hence the
need for Intellectual Property Rights politics. It is this lack of transparency and
democratic accountability that is the deeper problem related to the trajectory of the
Intellectual Property Rights regulation and this is what is revealed through the operation
of an IPR environmentalism movement (Boyle, 2003c)
3.4.1 Early conceptualizations of the Commons
We will argue that in order to fully appreciate these structural problems in relation to
the IPR regime we need to move to the following stage of this critical literature review
and present first different notions of commons or public domain in the context of
intellectual property rights and second to explore Benkler’s claim for the “battle over
the institutional ecosystem in the digital environment” (2001; 2006). The boundaries of
the concept of Commons or public domain in the literature are important to track the
process of meaning creation, whereas the reference to Benkler’s “battle of institutional
ecosystems” complements Boyle’s work on environmentalism on the net.
The concept of public domain or the commons and how it may be sustained through a
system of incentives is a theme explored by various authors [e.g. (Lange, 2003a)
73
(Krasilovsky, 1967) (Samuels, 1993) (Litman, 1990) (Dagan, 2006)]. In this section we
concentrate on the work of Boyle, Benkler and Lessig as they are key public figures also
in relation to the activism related to the construction and preservation of the public
domain. We need to clarify why we are so interested in the theoretical conceptualization
of the commons and its importance for the information society. Academic theory in this
area, despite the term, is anything but “academic”: it influences the actual discourse on
the public domain and is one of the main drivers for the creation of an environmental
movement in the area of intellectual property rights (Boyle, 1997a).
The concept of commons as seen in the literature related to real property (Hardy, 2001)
is Boyle’s starting point. Boyle considers as the key work for setting the modern agenda
for the public domain in the area of intellectual property (hence public domain) the
paper by Lange Recognising the Public Domain written in the early 1980s (Lange,
1981). As we have already mentioned this paper has made the metaphor of
environmentalism for the realms of Intellectual Property Rights and has suggested that
the intellectual commons or the public domain had to be seen in analogy with the
physical commons.
Boyle in the “Second Enclosure” (2003c) paper refers extensively to Lange’s paper
(1981) using his metaphor and exploring the idea of physical commons and their
privatization or, as he calls it, the “first enclosure”. The crux of his argument is that
because of a series of factors (among others political will and economic theory)
privatization was held as the most efficient way to manage property. Boyle will invoke
the image of the tragedy of the commons to express the prevailing attitude behind the
concept that Hardin has illustrated in the “tragedy of the commons” (Hardin, 1968).
Boyle in the same way as Lessig (2001b), Benkler (1998; 1999; 2000; 2001; 2002;
2003a) or Littman (1990; 1994) will refer to Hardin’s work in order to contest its
application in the area of intellectual property and particularly that of digital intellectual
property. This is done by referring to a series of works such as the Tragedy of the
Anticommons (Heller, 1998), the Comedy of the Commons (Rose, 1986) or the Drama
of the Commons (Ostrom, 2002) making the case for how the commons may be
effectively and efficiently managed without having to revert to enclosure solutions.
Following Lange, Boyle concedes that the Public Domain or the commons appear as a
legal concept at the same time as the copyright. Boyle, however, argues that what has
74
changed with the advent of new legislation as a reaction to the introduction first of mass
copying and then of digital technologies is the “baseline” for the Intellectual Property
rights: it used to be, for instance, that the public domain would be the baseline and the
privatization the exception, whereas now it is the opposite that holds true. As a variety
of authors have noted, by abolishing the formalities for the protection of a work under
copyright law there has been a fundamental shift in the presumption of whether a work
belongs to the public domain or is privately owned: all creations are now by default
owned by some creator.
At the same time, as Boyle notes, another fundamental shift was happening: because of
the introduction of new pervasive technologies allowing or based on reproduction of
content, the act of copying material and thus the violation of copyright from a practice
happening in the professional or commercial level has been rendered part of our daily
routines (Boyle, 2003c).
Boyle notes as many other authors before and after him that the traditional critique on
commons is not valid any more, mainly as a result of the differences between the
Intellectual Property and physical products. We have referred before (section 3.4) to the
nature of Intellectual Property as a legally constructed entity making reference primarily
to Lange’s work. Boyle refers to two characteristics of information goods: that they are
non-rivalry and non-excludable repositioning the debate on the utility of a commons in
the area of incentives for the production of those goods (Boyle, 2003c).He explains the
current maxim in the Intellectual Property along the following lines:
“My point is that there seems to be an assumption that the strength of intellectual
property rights must vary inversely with the cost of copying.”
3.4.2 FLOSS as a paradigm for the Commons
Boyle contests this assumption as misleading by referring to the concept of the tragedy
of the Anti-commons (Heller, 1998): by increasing the cost of access to content through
intellectual property rights, the cost for new production increases; any new creator
would need to have access to existing material either for reference purposes or in order
to create derivative works. Boyle, hence, concludes that enclosing information goods is
not necessarily the best strategy for encouraging creativity and innovation.
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This is a crucial stage in the process of constructing the commons: it is the stage where
new technologies of production and creation appear and the current model of
Intellectual Property Rights as a tool for encouraging creativity starts to be contested.
This is the stage where a new actor appears to support the Public Domain instead of the
proprietary solutions. This actor is the Free/ Open Source Software movement
(Stallman, 2002).
Boyle will call FLOSS a paradigmatic case for the commons/ public domain case. He
will question whether such a characterization is important for supporting the public
domain debate, since similar arguments have been made far before the advent of
FLOSS. Nevertheless, it remains undisputable that the unprecedented success of FLOSS
has greatly contributed to the debate on the commons (Benkler, 2001; 2002;
Gomulkiewicz, 1999; Gonzalez, 2005; González, 2006; Moglen, 1997; 2000; 2003;
Lessig, 1999c). We are not going to refer to the details of the mechanics of FLOSS here.
All we need to mention is that FLOSS shows that a different treatment of IPR based on
sharing knowledge rather than restricting access is possible. More than that, it
demonstrates that the FLOSS model may support even commercial activity.
As Boyle writes echoing the work of Benkler (2002) and Moglen (1997; 1999; 2003)
the question of incentives starts becoming marginalized. It does not really matter why
people do what they do; what it matters is that they actually do it. Moglen’s (1997)
description is instructive:
“[I]ncentives” is merely a metaphor, and as a metaphor to describe human
creative activity it’s pretty crummy. I have said this before, but the better
metaphor arose on the day Michael Faraday first noticed what happened when
he wrapped a coil of wire around a magnet and spun the magnet. Current flows
in such a wire, but we don’t ask what the incentive is for the electrons to leave
home. We say that the current results from an emergent property of the system,
which we call induction. The question we ask is “what’s the resistance of the
wire?”
So Moglen’s Metaphorical Corollary to Faraday’s Law says that if you wrap the
Internet around every person on the planet and spin the planet, software flows in
the network. It’s an emergent property of connected human minds that they
create things for one another’s pleasure and to conquer their uneasy sense of
being too alone. The only question to ask is, what’s the resistance of the
network? Moglen’s Metaphorical Corollary to Ohm’s Law states that the
resistance of the network is directly proportional to the field strength of the
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intellectual property” system. So the right answer to the econodwarf is, resist the
resistance.”
The extract from Moglen’s work (1997) is instrumental for appreciating the impact of
FLOSS in the process of constructing the public domain. Moglen offers a metaphor for
how creation happens in a large interconnected environment where the costs for
production and reproduction are approaching zero. Moglen describes the fundamental
principle behind FLOSS that is essentially rooted in the early days of Internet
computing but is still the predominant mode of production for numerous types of
software and content on the Internet. The importance of Moglen’s contribution for the
purposes of this paper is that it proposes a different framing for the debate on the
production of content over digital networks and –more importantly- he does that
through a real example, a class of real examples to be more accurate.
This is the power of a paradigmatic case to which Boyle has also referred: what really
matters is that FLOSS actually happens. Benkler (2001; 2002; 2003b; 2006) will
subsequently present a more comprehensive analysis on the economics of the
phenomenon as a whole coining the term “Commons Based Peer Production” (Benkler,
2002) and presenting a wide variety of examples ranging from FLOSS to Wikipedia,
and from File Sharing to rating systems in commercial platforms like Amazon. A series
of examples that any lay user would encounter in her daily use of the Internet comes to
support the argument of the Commons together with economic theory that supports the
possibility of a mode of production and management of information goods alternative to
the one advocated by the current IPR regime. Perhaps the most interesting point that a
number of authors make is that the current IPR regime operates as an obstacle for these
forms of production and is possibly an obstacle in general in relation to creative
production in digital environments (Aigrain, 1997; Baldwin, Scott and Hood, 1998;
Barlow, 1994; Benkler, 2000; 2001; 2002; 2003b; 2006; Bollier, 2001; Boyle, 2000;
Braithwaite and Drahos, 2000; Carroll, 2006; Cohen, 1998; Drahos, Braithwaite and
Drahos, 2004; Dyson, 1995; Ghosh, 1997; 1998; Goldhaber, 1997; Gupta, 1985;
Halbert, 2006; Hietanen, Oksanen and Valimaki, 2007; Landes and Posner, 2003;
Lerner and Triole, 2002; Moglen, 1997; 2003; Opderbeck, 2004; Samuelson and
Scotchner, 2002; Strahilevitz, 2003; Watt, 2000; Zimmerman, 2003). This is where the
need for a more coherent policy, information politics as Boyle (1997a) calls them, or
77
political economy (Benkler, 2003b) as Benkler refers to it for the institutional
ecosystem (2001) of the Internet emerges (Pasquale, 2006).
3.5 Three Definitions for the Intellectual Commons and the
Public Domain
In a review of the recent literature on Public Domain, Boyle (Boyle, 2003c) produces
three categories of approaches to the problem of defining the public domain: A first
category, very much influenced by the anti-monopoly/ anti-censorship concerns of the
founding fathers of the US constitution, is mainly against any form of monopoly that
restricts free trade and freedom of speech. This first category accepts the importance of
IPRs but seeks for a series of limitations. A second category is the one that criticizes the
IPR expansionism and seeks affirmative rights for the public domain. This category
seeks to establish a free public domain. Finally, there is a third category that uses the
language of the commons and seeks to establish a series of rules for the governance of
the e-Commons. Boyle will return to his concept of environmentalism as the binding
link for all these diverse conceptualizations for the public domain and the commons:
“In many ways, it turns out, concepts of the public domain show the same
variation in assumptions, and the same analytic differences, as the concept of
property itself. I conclude by arguing that, for a number of reasons, the
appropriate model for the change in thinking which I argue for comes from the
history of the environmental movement. The invention of the concept of “the
environment” pulls together a string of otherwise disconnected issues, offers
analytical insight into the blindness implicit in prior ways of thinking, and leads
to perception of common interest where none was seen before. Like the
environment, the public domain must be “invented” before it is saved. Like the
environment, like “nature,” the public domain turns out to be a concept that is
considerably more slippery than many of us realize.
And, like the environment, the public domain nevertheless turns out to be useful,
perhaps even necessary.” (Boyle, 2003c p. 52)
What is interesting at this stage is that Boyle presents three different versions for what
constitutes public domain making at the same time the differentiation between public
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domain and the commons. In order to support his argument Boyle uses the concepts
employed by three different authors, Littman (1990), Benkler (1998; 1999; 2002) and
Lessig (2001b).
Seeking for a basic definition for the Public Domain, Boyle will refer to Littman’s
(1990) work:
“[A] commons that includes those aspects of copyrighted works which copyright
does not protect.”
Then he compares that with Benkler’s definition (1998; 1999; 2002) :
“The functional definition therefore would be: The public domain is the range of
uses of information that any person is privileged to make absent individualized
facts that make a particular use by a particular person unprivileged. Conversely,
[t]he enclosed domain is the range of uses of information as to which someone
has an exclusive right, and that no other person may make absent individualized
facts that indicate permission from the holder of the right, or otherwise privilege
the specific use under the stated facts. These definitions add to the legal rules
traditionally thought of as the public domain, the range of privileged uses that
are “easy cases.”
Benkler’s focus is primarily on the operation of the public domain as a resource for the
further production of information goods and as such he is an advocate of free access to
information goods both in the sense of zero cost and zero control. At least, this is
Boyle’s understanding:
“I think that Benkler is arguing that the most important question here is whether
lay people would know that a particular piece or aspect of information is free—
in the sense of being both uncontrolled by anyone else and costless”.
However, the most interesting part is when these definitions are compared with Lessig’s
(2001b) definition of the commons, quoted by Boyle:
“It is commonplace to think about the Internet as a kind of commons. It is less
commonplace to actually have an idea what a commons is. By a commons I
mean a resource that is free. Not necessarily zero cost, but if there is a cost, it is
a neutrally imposed or equally imposed cost. Central Park is a commons: an
extraordinary resource of peacefulness in the center of a city that is anything but;
an escape and refuge, that anyone can take and use without the permission of
anyone else. The public streets are a commons: on no one’s schedule but your
own, you enter the public streets, and go any direction you wish. You can turn
off of Broadway onto Fifty-second Street at any time, without a certificate or
authorization from the government. Fermat’s last theorem is a commons: a
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challenge that anyone could pick up; and complete, as Andrew Wiles, after a
lifetime of struggle, did. Open source, or free software, is a commons: the source
code of Linux, for example, lies available for anyone to take, to use, to improve,
to advance. No permission is necessary; no authorization may be required. These
are commons because they are within the reach of members of the relevant
community without the permission of anyone else. They are resources that are
protected by a liability rule rather than a property rule. Professor Reichman, for
example, has suggested that some innovation be protected by a liability rule
rather than a property rule. The point is not that no control is present; but rather
that the kind of control is different from the control we grant to property.”
Lessig’s definition of the commons is indicative of his overall approach to the problem
of IPR expansion. He is interested in information infrastructures or information or
knowledge as an essential facility for innovation. And he is against any monopolization
of such infrastructure. In that sense, as Boyle also notes, Lessig views the problem of
innovation as a problem of control. He is interested in free access in the form of non-
discriminatory access and he sees FLOSS as a paradigm for these commons (Lessig,
1998a; 1999a; 1999c; 1999d). Commons are not entirely free; there is some sort of
governance and Lessig is interested in how access may be maintained while this form of
governance will also be retained or cultivated.
To revert to one of Boyle’s points, Lessig is not interested in the old dilemma between
proprietary and free but rather between centralized and distributed forms of control. The
constraints are there but not in their traditional form. Boyle remarks that the differences
in the conceptualizations of the commons or the public domain follow a common
pattern with the differences in the understanding of property:
“And what is true for property is true for the public domain. Just as there are
many “properties,” so too there are many “public domains.” (Boyle, 2003c p.
68)
The variety of opinions in relation to what constitutes the public domain or the
commons is not a problem for Boyle. What is nevertheless required is creating an
umbrella under which all these divergent opinions may be gathered and together strive
for the accomplishment of a common goal in the same way as the environmental
movement does. Boyle acknowledges the importance of language for the construction of
the public domain but he is also reminiscent of the fact that more than mere language is
required for the construction of a concept. Such an approach that brings us closer to an
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understanding of the phenomenon is fully compatible with his call for the emergence of
an environmental movement for the public domain (Boyle, 2003c):
“The concept of the environment allows, at its best, a kind of generalized
reflection on the otherwise unquestionable presuppositions of a particular mode
of life, economy, and industrial organization. At their best, the commons and the
public domain can do the same in helping us to reimagine creation, innovation,
and speech on a global network. And this seems particularly important today.”
(Boyle, 2003c p. 74)
Benkler in his latest book (2006) following earlier work (2001; 2002) of his on the
introduction of new production mechanisms on the Internet and greatly influenced by
the FLOSS phenomenon presents the process of constructing the public domain as a
battle, the battle over the institutional ecosystem in the digital environment. Here, the
environment takes a different notion, that of the surroundings or a background that has
institutional properties in the sense of framing human behavior or in the form of
comprising of resources for the production of information goods. Moreover, the
complexity of the environment is such, that no linear causality may be established
between any regulatory intervention and the final outcome:
“The term “institutional ecology” refers to this context-dependent, causally
complex, feedback-ridden, path-dependent process. (…) As these stories
suggest, freedom to create and communicate requires use of diverse things and
relationships—mechanical devices and protocols, information, cultural
materials, and so forth. Because of this diversity of components and
relationships, the institutional ecology of information production and exchange
is a complex one. It includes regulatory and policy elements that affect different
industries, draw on various legal doctrines and traditions, and rely on diverse
economic and political theories and practices. It includes social norms of sharing
and consumption of things conceived of as quite different—bandwidth,
computers, and entertainment materials.” (Benkler, 2006 p. 387)
Benkler in that sense is close to Boyle and Lessig’s concerns in relation to the question
of who will control the common information environment, the commons and thus
society as a whole. Benkler’s point is that we are in dire need of a series of interventions
that will make sure that the new production form will continue to exist and all this
potential for free creative expression will not be hampered.
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With Benkler’s, Lessig’s and Boyle’s both academic and activist contributions we reach
a particular stage in the Commons discourse. At this stage, the need for the definition of
a commons or public domain has been established. It is clear that there is a variety of
opinions about what constitutes public domain or the commons as well as that there is a
need for the emergence of entities that could carry forward the effort for the creation of
this space following the example of the ecological organizations. Technologies and
practices as demonstrated in the FLOSS movement indicate that it is possible that
people still create intellectual goods in a non traditional IPR environment. The
economic theories supporting these modes of production also illustrate that the main
obstacle for following such models of production is the current legal system and the
institutions based upon it. The emergence of new technologies, practices and institutions
and the resistance of the existing ones are summarized in Benkler’s argument on the
battle over the institutional ecosystem. The question that is posed at this point is which
is the most effective strategy for building a public domain and whether the existing
efforts, the Creative Commons in particular is one that actually facilitates the creation of
such a public domain or commons or is instead facilitating the re-enforcement of
property rights and undermines the long term efforts for a social change in favor of a
public domain.
3.6 Conclusion
This chapter describes a phenomenon we call regulatory distantiation because it echoes
the increasing distance between the practices of creation and use of Copyright-regulated
material and those groups of stakeholders producing the Copyright's regulatory content.
The distantiation phenomenon is an expression of the trend to have increasingly less
actors deciding about the regulatory content of a field of law that becomes relevant to
increasingly more. This pattern may be summarized in two sets of findings:
(a) Less Actors having an input to the formation and interpretation of the regulatory
content of Copyright:
[i] The ability to take decisions is inversely analogous to the level of accountability of
the decision making body: International Treaties that feed into Regional Instruments
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that then have to be ratified by National Parliaments. The trend here is to move to an
increasingly higher level of decision making.
[ii] The ability to form the content of the rules governing the use of a particular work is
not a matter of negotiation or the result of the decision of a publicly accountable body:
moving to private law through the use of End User Licence Agreements
[iii] The enforcement of the private agreements is not subjected to the mediation of the
third party like a court of law but is rather directly enforced under the terms of the party
crafting the rules: use of Technical Measures of Protection for the enforcement of
EULAs
[iv] Non-professional creators are not represented by any collective formation like a
collecting society or other professional association and do not take part in an organized
fashion in consultations or the drafting of the legislation in the level of international
organizations.
[v] Copyright Law rules having an intangible subject matter is counterintuitive in its
application and its rules are often not understood by the layman, in contrast to real
property norms that are much easier to internalize. The routines on on-line
environments are actually contrary to most of Copyright's rules.
(b) Copyright Law is becoming a form of regulation relevant to increasingly greater
population segments:
[i] In a digital/ on-line environment all uses amount to copying and are hence subjected
to Copyright Law, i.e. all users of digital/ on-line environments are subjected to
Copyright Law
[ii] Infringement because of the underlying technical structures is possible in a mass-
scale, micro-level by non-professional as a matter of their daily routines.
[iii] Enforcement is possible through Technical Measures of Protection and EULAs in a
more pervasive, intrusive and personalized fashion.
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[iv] With the threshold for Copyright protection being particularly low both in terms of
substantial (low level of originality) and procedural (lack of formalities) conditions and
the production means increasingly cheap, almost everyone having used digital
technology is potentially either a Copyright holder or an infringer or both.
The second conclusion relates to the nature of the Commons as a device to support
creativity in an environment where the question is not how to provide the incentives for
the production of creative material but rather how to reduce the frictions that hinder
such production. It is not merely the fact that Commons and Copyright-based property
are two opposites that are equally founded on a legal fiction; it is also that they promote
a different model of creativity based on different economic assumptions about how
creativity and innovation occurs. In addition, what emerges from the relevant literature
is that the discussion relating to the Commons is equaled to a discussion related to the
content of their regulatory conditions.
The third conclusion relates to the fact that a Commons Based Peer Production model or
Moglen’s Law is particularly useful for a new class of creators that base their works on
the re-use of material and the use of Internet-related technologies and that such authors
are not represented in the existing legislative instruments. The clash between
Copyright's classic proprietary project and the Commons project is not merely a clash
between infringers and owners but between existing rights holders and future creators
that seek to transcend the alienation from accessing the means of regulation production.
The realization of the constructed character of the Creative Commons, the fact that there
are more than one economic models for how creativity may be fostered through a
system setting its regulatory conditions and the fact that regulatory distantiation is an
endemic aspect of the current Copyright regime, leads to the overall finding that issues
of Copyright and Commons have a predominantly political texture: though the
regulatory conditions governing creativity are constructed and there are actual
alternatives to the current dominant model of fostering innovation, the possibility to
participate in their formation and potentially to their change becomes increasingly more
difficult. This fourth finding is consistent to the Ecological vocabulary used by Boyle in
his approach to the Commons phenomenon and points towards the politicization of the
CC debate.
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Whereas this chapter has dealt predominantly with presenting the issues in relation to
the Copyright- Technology interaction, and the related approaches to the problems of
the Commons and the Public Domain, the following chapter will explore the way in
which Lessig’s work is related both to this background and the critique of the CC
project expressed by Elkin-Koren in chapter two.
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Chapter Four Conceptual framework
4. Introduction
In chapter two, Elkin-Koren's work (2005; 2006a) has left us with three puzzles: First, if
“Copyright law is located at the heart of Creative Commons' agenda and is viewed as
the main obstacle for what is perceived as an ideal world of creating and sharing
creative works” then why “Creative Commons' strategy is entirely dependent upon a
proprietary regime, and derives its legal force from the regime's existence”? Second, is
the “ideological fuzziness” of the CC project, this “lack of a clear definition of the
commons” that “reflects a profound disagreement regarding the meaning of the public
domain” responsible for this choice? Third, will “(t)his fuzziness (...) impair the advent
of a workable and sustainable alternative to copyright through grassroots activism
facilitated by contracts”? In other words, will “individual authors” that “are not only
aware of the proprietary regime but are also armed with an efficient mechanism to
execute their intellectual property rights” “use the mechanism to set limits on the
exploitation of their works”?
In this chapter we attempt to provide the foundations for answering these questions by
achieving another tast: that of sketching an outline of the theoretical work of the very
founder and chair-person of Creative Commons, professor Lawrence Lessig (Hunter,
2004; Post, 2000)
Similarly to his “activism offspring” (Lessig, 2006a), the Creative Commons project,
Lessig's intellectual work seems to be characterized by a certain degree of inconsistency
or at least fuzziness. These tensions within Lessig's work create three puzzles that are
the starting point of this chapter:
First, how is it possible one of the most recognized public figures speaking with
authority for the reform of Intellectual Property Law to be a constitutional law professor
that only back in 1996 would confess that his involvement with IPR was only marginal:
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“I am honored to be here. I am also surprised. When I was called by the Journal
and asked whether I would come and talk on this panel on Intellectual Property,
I said I would love to come, but I do not know anything about intellectual
property. "Great" the caller said, and so here I am. I do teach a course on the law
of cyberspace, and we do spend some time talking about intellectual property. It
poses an organizing problem for the law of cyberspace because it raises
important questions that cyberlaw presents or will present.” (Lessig, 1996a p.
635)
Second, what is professor Lessig's position in relation to innovation and conservation?
Or to state it differently, how is it possible to be an advocate of structures promoting
innovation and creativity and at the same time asking to revert back to the principles
and the values of the past, whether these of the founding father of the U.S. constitution
(Lessig, 1993; 1995b; 1995d; 1996c) or those in the original Copyright laws (Lessig,
2004d; 2005k)?
Third, how does professor Lessig propose to resolve two sets of tension in complex
digitally networked environments: first, between the individual and the commons; and
second, between the need of state intervention for guarding the values of the social and
the need of empowering the individual to manage her rights without any mandatory, one
size fits all regulations? In all cases Lessig has been criticized for supporting
rhetorically and in his theoretical work the commons and the state intervention, whereas
providing the practical tools for the empowerment of the individual to the expense of
the commons (Elkin-Koren, 2005; 2006a; Dusollier, 2006).
Providing some answers to these three puzzles may be the key for appreciating Lessig's
work and constructing a comprehensive framework for his approach to regulatory
formations. These puzzles, to use a metaphor used in Lessig’s work (Lessig, 1989;
1993; 1995c; 1995d), operate as a Russian doll or an onion: the solution to the one
provides the conditions for moving to the next.
A prolific writer himself, Lessig has produced over 61 law review papers and 4 books in
less than two decades (Hunter, 2004). Fifty nine of the former and three of the latter
have been used to produce some answers regarding professor Lessig's puzzles of this
chapter.
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Bringing together the scattered pieces of the puzzle, we start reconstructing Lessig’s
project from a different point of view: not as a copyright project, but rather as a
regulatory change and social reform project.
This chapter is structured as follows: throughout section 4.1 we deal with the issue of
association construction techniques in Lessig’s work. Section 4.2 presents the issue of
regulatory costs particularly in relation to plasticity, immediacy and internalization. In
the following section (4.3) we deal specifically with the construct of the four modalities
of regulation. In section 4.4 we extensively explore the issues of regulatory distantiation
over the Internet and Lessig’s model for overcoming them. In section 4.5 we position
Lessig’s work in the broader regulatory theory, FLOSS research and aspects of
Information Infrastructures and standards literature. Such positioning allows an first
reading of the similarities between Lessig’s work and other related research. Finally
section 4.5 presents some answers to the three puzzles presented in this section as a
result of the overall critical review of Lessig’s work featuring in this chapter.
4.1 Questions on the issue of change
Lessig in his work does not speak about Intellectual Property Rights, or more
accurately, it is not just Intellectual Property Rights he speaks about. A classification of
Lessig's academic work over the last two decades is useful in appreciating the focus of
his research. Lessig's work may be categorized in three periods: First, the constitutional
law period (Lessig, 1989; 1993; 1994; 1995a; 1995b; 1995c; 1995d; 1996b; 1996c;
1997b; 1997c; 1997d)(Lessig, 1998b); second, the cyberlaw period (Lessig, 1995e;
1996d; 1996e; 1996f; 1996-1997; 1997a; 1998a; 1998c; 1998d; 1999b; 1999e; 1999f;
1999g; 2000b; 2000c; 2001d; 2003b); and finally, the commons/ IPR period (Lessig,
1996a; 1999a; 1999c; 1999d; 2000a; 2000d; 2001a; 2001b; 2001e; 2002a; 2002b;
2002c; 2002d; 2003a; 2003c; 2004a; 2004b; 2004c; 2004d; 2004 ; 2006b; 2006c). Of
course, the categories are not set in stone; there are works that may fit both in cyberlaw
and constitutionalism [e.g. (Lessig, 1996d; 1996e; 1996-1997; 1997a; 1998d)] or
cyberlaw and IPR [e.g (Lessig, 1996a; 1999a; 2001a; 2002c)] or IPR and
constitutionalism [e.g. (Lessig, 2001e)]. The point, nevertheless, in providing such
categorization is that Lessig moves from constitutional law questions, to Cyberlaw
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questions to Intellectual Property Rights questions. To understand why, we need to
explore the specific questions Lessig work poses.
In a series of six papers (Lessig, 1989; 1993; 1995a; 1995b; 1995d; 1996c) Lessig
explores the issue of constitutional law responses to social change. The theme Lessig
deals with in this set of papers is particularly useful to understand the way in which
Lessig deals with conservation and innovation. The kind of change Lessig is interested
in is change in the social context and the way in which such change may provoke the
transformation of the operation of the U.S. constitutional text. Lessig's questions in the
first place seem to be of a purely legal nature: when circumstances change, what does
this mean for our fundamental legal texts, such as the constitutions; more specifically,
how should institutions responsible by virtue of law for the interpretation of
constitutional law, such as the courts, deal with such change?
A series of concepts need to be clarified in order to appreciate this stage in the
development of Lessig's research project. The notion of change is a good starting point.
Lessig views change in his “constitutional” circle of papers in three ways: initially,
change is used as a factor exogenous to the response of an acting agent. Change equals
to a transfiguration that is external to the text of the law and its interpreter. As such it
requires a response, either to the direction of reinforcing it or resisting it. This
conceptualization of change is used in cases of technological change that render the
interpretation and operation of a legal text different from what it used to be (Lessig,
1989; 1993; 1994; 1995c). An example used by Lessig are the changes in surveillance
equipment and the impact they have upon the relevant constitutional provisions
regarding privacy or changes in reproduction technologies and the impact they have in
the conceptualization of Copyright’s fair use provisions (Lessig, 1995d).
On a second level, change is seen as something that may be mastered and used in order
to produce a result (Lessig, 1989; 1993; 1995c; 1995d). In that sense, change may be
actively sought in order to achieve a certain end or purpose. This second case is
differentiated from the former on the basis of their focal point. Whereas in the first case
change is approached from the viewpoint of the one responding to it, in this second
level the perspective is the one of the entity provoking change. Thus, the questions
asked are not of the type “how can we respond to change?” but rather “how can we
provoke change?” Lessig deals extensively with these issues in relation to his notion of
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the “meaning manager” (Lessig, 1995c; 1996b), a fictional entity that manages meaning
and directs change. The first and the second levels of conceptualizing change may, as
Lessig notes, coincide as a possible response to change is to provoke change.
Change finally is used to express social reorganization, transition (Lessig, 1989; 1995d)
and innovation (Lessig, 2001a; 2002c). In this dimension of change the questions asked
are not ones of perspective but of qualitative characteristics. We are not asking how to
respond to it or how to provoke it but rather which are its qualitative characteristics in
the social level.
The first two types of change perspectives are focused on the agent that either reacts or
acts, whereas the third type on the structural elements of change. This differentiation is
merely schematic as problems of structure and agency also exist in Lessig's work and
the boundaries between them are not always clearly demarcated. The categories
presented in this section, however, are useful for analytical purposes, facilitate a better
navigation into Lessig's work and assist into entering Lessig's regulatory discourse.
Furthermore, Lessig's theoretical biases come from the area of critical legal studies
[mainly Unger (Unger, 1986; 1987a)] which is particularly interested in social change,
the capacity of social structures to support it, the ability to provoke it and the responses
it calls for.
If Lessig is interested in change, the change of what is he interested in? He refers to
social “structures”, “context” or “social change” (Lessig, 1989; 1993; 1995a; 1997c)
and “changed readings”(Lessig, 1995d), but more than anything else to changes in
“social meaning” (Lessig, 1995c; 1996b). Lessig's understanding of social meaning is
possible the most important concept in his work as it constitutes the cornerstone for all
subsequent work and as we will argue at the end of this chapter provides the key for his
understanding of both regulation in general and Copyright Law and Creative Commons
in particular.
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4.1.1 Social Meaning and responses to change
Change and in particular social change was the theme of the previous section. However,
in order to appreciate better the kind of change Lessig refers to, we need to appreciate
the domain in which it is applied, and this is the one of meaning and in particular social
meaning.
Lessig is not providing an exhaustive definition or investigation of what meaning is but
he is rather interested in how it operates. In his own words, he is interested in
“pragmatics”, not “semantics” (Lessig, 1989; 1993; 1995c). Nevertheless, Lessig's use
of social meaning as a heuristic for appreciating change is revealing of its ontological
foundations. Before proceeding to their exploration, we will need to make a final note
on the reasons behind the centrality of the use of meaning into Lessig's work.
We have placed these considerations into the constitutional period of Lessig's work and
this is due to his investigation of how the courts interpret the text of the constitution in
the face of changing circumstances or how the constitutional text may be effectively
altered by changing its surrounding circumstances (Lessig, 1989; 1993; 1995a; 1995d).
Lessig is indeed interested in the meaning of the constitutional text. This constitutes the
starting point of his research; however, as he starts digging deeper and deeper into the
relationship between the constitutional text and its context he will find himself in a
situation where meaning and regulation will become broader issues of consideration
(Lessig, 1995c; 1995d; 1996b; 1996c; 1997c). Lessig will gradually depart in three
ways from his original work on meaning. At a first stage he will move to interpretation
of not merely the constitution but other normative or non normative entities (Lessig,
1995c; 1996b; 1996d; 1996e) with his work on social meaning and its regulation. At a
second stage he will move to the interpretation not just by the courts but by other
entities, when he will start investigating issues of social meaning in cyberspace (Lessig,
1997a; 1998a; 1999f; 1999g). At a third stage he will move to the interpretation not
merely by humans but by other entities, such as different modalities of regulation, when
exploring the device of indirection, i.e. the way in which one form of regulation adopts
the regulatory content of another (Lessig, 1998a; 1998d; 1999b; 1999f).
These three stages are not successive neither explicit in Lessig's work but may be traced
in the evolution of his work. They also mark his gradual research transition from issues
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of constitutional law and meaning [e.g (Lessig, 1989; 1995d; 1996c; 1998b)(Lessig,
1995c)] to issues of cyberspace regulation [e.g. (Lessig, 1996d; 1998a; 1998d; 1999f;
1999g)] and finally Free/Open Source Software [e.g. (Lessig, 1999c; 1999d; 2000d),
innovation (Lessig, 2001a; 2002c)] and the Commons [e.g. (Lessig, 1999a; 2001b;
2002a; 2003c; 2004d)].
Lessig uses the term meaning as synonymous to the concept of association and sees the
process of meaning creation as a process of association creation (Lessig, 1993; 1995c;
1997c). Early in his work, Lessig dismisses the term association as far too passive for
the purposes of his work (Lessig, 1989). Though such a position makes sense in relation
to the papers in which it is placed, namely papers where the interpretation by a judge is
the main research question, the concept of association is much more useful in more
complex cases as the ones seen in Lessig's subsequent work, particularly in his
Cyberlaw (Lessig, 1995e; 1996d; 1996e; 1996f; 1998d; 1999f) and Commons papers
(Lessig, 2000a; 2001a; 2001b; 2003c; 2004d; 2006b; 2006c). The heuristic of
associations is particularly powerful as it provides a cohesion metaphor for constraining
or enabling a behavior, on the basis of costs and benefits. It is also particularly useful
for appreciating the indirect regulation as a process of construction by non-humans,
though not explicitly mentioned in Lessig's work. The terms associations and meaning
will be used interchangeably in the rest of this thesis according to the needs of the
particular section.
To return to the term meaning, Lessig approaches it as a function of both token (or text)
and context (Lessig, 1995c; 1996b). Lessig uses the term token in its broader sense to
denote anything that could fit into the metaphor of text, though in his early
constitutional period he refers explicitly to the text of the U.S. Constitution (Lessig,
1989; 1993; 1995a; 1995c; 1995d). If meaning in the case of the U.S. Constitution is a
function of the constitutional text and its context, then in order for it to change, either
the text or the context need to be changed. The institutional reality of Lessig’s early
problem domain makes text a less appealing object of study than the context. This is
because there is an institutionally approved and legally codified process for amending
the constitutional text that is of such complexity and formalism that has been used only
in few cases. In contrast, there are many more instances where the context has been
radically altered and as such the meaning of the constitutional text has changed
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accordingly. Lessig chooses to examine those cases that are farther away from the
formal process of constitutional amendment or interpretations of the constitution that
effectively alter its original meaning as a result of the changing circumstances (Lessig,
1989; 1993; 1995b; 1995d; 1997c).
Lessig's first set of questions, we have identified before, relates to the way in which a
particular institution responds to change (Lessig, 1989; 1993; 1995b; 1995d; 1997c).
This is a key issue as it raises a series of further fundamental questions. First, what is it
to be changed: Lessig asks about changes in the readings of the constitutional text. In
other words, he asks about changes in the operation of normative texts that represent
social agreements on a fundamental level. To put it differently, Lessig asks the question
of how we should respond to efforts to change our fundamental social agreements. We
have purposefully abstracted Lessig's questions to such a degree in order to be able to
associate it with subsequent endeavors that transcend the boundaries of U.S.
constitutional reality. Nevertheless, Lessig starts from a very specific case, that of U.S.
constitutional law; the examples and problem domain Lessig chooses, assist us in
further elucidating his fundamental research questions.
Lessig refers to the change in the meaning of the constitutional text without changing
the text itself (Lessig, 1989; 1995b; 1995c; 1996b). Such position reflects a
differentiation between the text as a material manifestation of the social agreement and
the actual content of the social agreement. If the meaning of the text changes while the
content of the social agreement remains the same, then it is very likely that the social
agreement is indirectly breached. The reference to “values” or “principles” by Lessig
implies that these values or principles constitute expressions of such achieved social
agreement. We need to adhere to these principles because in that way we adhere to our
social agreement. Lessig asks whether such an agreement is frozen in time or -as Lessig
calls it- whether such agreement operates as “a fixed stellar” (Lessig, 1993)
Lessig's treatment of Unger's (1976; 1984; 1986; 1987a; 1987b) and Ackerman's (1984)
work is illustrative of his position. Despite any differences they may have with each
other with respect (a) to social plasticity and (b) to the question of whether
constitutional or normal politics should exist, there is a fundamental agreement between
the two. Their agreement has the following content: The amendment of fundamental
social principles is possible only under certain conditions that ensure the maximum
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participation of those regulated by the relevant regulatory instrument, i.e. the U.S.
constitution in the case of Unger and Ackerman’s work.
To sum up and provide a first answer to the question related to the kind of response
required in the case of change, Lessig argues that a response is required to a change that
attaches new meaning to the agreed normative texts of fundamental nature, such as a
constitution. This response should be directed towards the principles agreed in a certain
social context and examine whether such agreement still holds true. This is because the
principles are not given but rather constructed.
In the same way that the principles are constructed, the context in which the normative
text is placed is also constructed (Lessig, 1989; 1995c; 1995d). Hence, when responding
to change the following questions need to be asked: first, whether the text or the context
is changed. Second, in the case that the context is changed, whether the resulting
meaning corresponds to existing fundamental social principles on which an agreement
has been reached. If it does not, then the principles themselves have to be questioned. If
they do not represent the will of the social group then they need to be changed, a task
that brings us to the final question of how should new principles be derived (Lessig,
1996c). This set of questions lies at the heart of Lessig's work and in order to be able to
provide some answers we need to return to the issue of context and seek to provide a
fuller understanding of how it operates in conjunction with meaning.
4.1.2 Context and Meaning Construction: Provoking Change
Context comprises for Lessig of “structures of understanding” that set the “range”
within which meaning may vary (Lessig, 1989; 1993; 1995a; 1995b; 1995c; 1995d;
1996b). In that sense the context comprises of a series of conventions for which social
agreement has been achieved and is sustained. The agreement focuses on the degree of
stability of the associations. Context in other words defines the degree to which certain
associations are either fixed and consolidated or fluid and “up for the grabs” (Lessig,
1989; 1993; 1995c). Hence, within a particular context there are meanings that are
contested and others that are uncontested.
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Lessig uses a rather crude device to explain context, that of meaning change costs:
within a certain context there are meanings that are extremely expensive or difficult to
change and others that are very cheap or easy to change (Lessig, 1995c). A context or a
“formative context” (Lessig, 1995c; 1989; 1993) comprises of all these factors that
define a landscape of costs for different types of meaning. In that sense, the concept of
context encompasses two elements: an ontological one that refers to the state in which
the various associations are at a certain point in time and a normative one that defines
the costs of their change at that particular point.
In order to appreciate the operation of context we need to move to the next of Lessig's
concept, the one of construction (1989; 1995b; 1995c; 1997b; 1997c). Thus we
gradually move to the second question posed above, that is, how is meaning
constructed. It seems that the two questions, how we respond to changes of meaning and
how meaning is constructed share some common ground: sometimes in order to respond
to changes of meaning there is a need to devote some effort in changing meaning. The
act of construction as we will see later may thus be either offensive (aiming at
introducing a new meaning) or defensive (aiming at preserving an existing one). We
will use the term “expansive” instead of “offensive” found in Lessig’s work in order to
avoid the ambiguities inherent in the latter term.
The language of associations is of particular relevance for assessing the operation of
context. A context sets the range of costs for creating new associations or destroying the
existing ones. However, precisely because in such a model the costs of new associations
always depend on the existing ones, and because associations are always a collective
issue, the problem of creating new associations becomes a recursive collective action
problem. We need to further elaborate on this point.
In the various cases Lessig uses in his writings (1989; 1993; 1994; 1995a; 1995b;
1995c; 1995d; 1996b; 1996c; 1997b; 1997c), he identifies a series of elements defining
the operation of context and meaning:
1. An action
2. Meaning coming out of the action
3. The action being placed in the context
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4. The meaning conveyed by the action is easily recognized in that particular
context
5. The action has associations with other actions or meanings
6. These associations are constitutive of the actions’ meaning (semiotic meaning
according to Lessig)
7. Actions have a range of meanings even if they do not have a single meaning
8. The question becomes how this range of meanings is constructed and how it
may be changed
The acts of meaning construction and change are synonymous in Lessig's work: since
meaning is always relying on existing associations, since there is always some
historicity in the concept of meaning, its construction constitutes some form of change.
Lessig’s description of meaning's construction has the following consequences:
1. because of the associations between various actions, they have implications for a
wide range of individual and social actions
2. because of (1) they have a non-optional character
Lessig has used the term “association” in order to describe the operation of meaning.
However, he considers such term as rather “static” or lacking the agency that the term
“meaning” implies and which Lessig prefers to use. As described above, meaning for
Lessig is produced by the association between text and context. The former acquires
meaning (“activates the association”) when placed within a particular context. Context
is what provides text with meaning. Lessig is interested in how such operation is
effected (1995c).
We could turn thus to a more social definition of context as “the collection of
understandings or expectations shared by some group at a particular time and place.”
(Lessig, 1995c). The elements of the definition are rather important:
1. a collection of understandings or expectations
2. shared by some group
3. at a particular time and space
4. the understandings or expectations have to be relatively uncontested
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Lessig uses a term borrowed from Bourdieu, i.e. “social magic”, in order to express the
contextually uncontested nature of certain expectations or understandings (Bourdieu,
Passeron and Nice, 1977; Bourdieu, Chamboredon, Passeron and Krais, 1991). Though
Lessig emphasizes the uncontested part of context, the contested part is of equal
importance. It remains an aspect of the same importance that there is a social agreement
not merely on the meanings that are contested but also on those that are uncontested.
Whether contested or uncontested, meaning depends on the costs associated with its
change in a particular context, the more the costs the more uncontested it seems; the less
the costs the more contested it appears. What characterizes the context is the two
elements ontological and normative mentioned above: the geography of associations
and the costs of their change.
Another element that needs to be pointed out is that an “action”, a “text”, a “token” may
be associated with other tokens or other meanings. From such description we may
derive a meaning conceptualization in Lessig's work that differentiates between token
and context in terms of complexity and between token and meaning in relation to the
degree of reification (Lessig, 1989; 1993; 1995c; 1996b; 1997c). A token is related to
other tokens, that is other reified entities or meanings, in other words with associations
of tokens with a range of costs regarding their meaning. A token may constitute the
reified sum of associations that then is placed within another space of associations and
when the associations are activated meaning is conveyed.
The Russian doll nature of token, context and meaning is further reinforced in Lessig's
understanding of social meaning's “pedigree”:
“Social meanings carry with them, or transmit, the force, or contestability, of the
presuppositions that constitute them. They come with the pedigree, presumed or
argued for, of their foundation. (...) Social meanings carry with them the history
of the transformations that make them contested or not: the moment the premises
upon which they are founded become invisible, these social meanings are in
their most powerful moment.” (Lessig, 1995c p. 961)
What happens at this “most powerful moment” of the social meaning is a particularly
interesting issue to ponder on: it becomes the constituent moment of the construction of
a token, a reified incarnation of the meaning or the founding moment of the structural
features of a particular context. The pedigree of a social meaning in relation to a
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particular token constitutes the sum of associations contained in this token or this
meaning and their respective costs.
Lessig provides with such conceptualization a more focused definition of social
meaning construction: It is
“[t]his process of changing contexts to change social meanings--the process of
changing the associations, of switching on certain links while switching off
others” (Lessig, 1995c p. 962)
Interestingly Lessig refers to the change of social meaning as a result of changing the
underlying structures rather than the text itself, which may remain stable. To a great
extent this is a result of the problem domain that Lessig investigates: in the case of
constitutional law it is the context rather than the text that is more often changed.
Another reason why context is more interesting for Lessig is that legal regulation in the
form of constitutional provisions acknowledges the existence of tokens but not easily
that of context as it application domain.
Lessig provides the following steps for changing social meaning:
1. “In the terms I have offered so far, social construction proceeds by breaking up
the understandings or associations at a particular time or built into a relatively
uncontested context, and upon which social texts have meaning.” (Lessig, 1995c
p. 962)
2. “It proceeds by remaking that which is taken for granted, and which gives a
particular text an unwanted meaning. It functions by switching on new
associations.” (Lessig, 1995c p. 962)
Lessig points out that the switching to these new associations requires effort, in other
words there is always a cost in effecting change and this cost relates to the change being
the result of collective action. As seen in Code (Lessig, 1999f; 2006d), Lessig regards
this effort or cost as one of the foundations of democratic order and as such he argues
that should be maintained on the Internet as well.
To sum up our findings up to this stage and the questions left to be answered, Lessig
believes that social meaning is a function of token and context, that it is constructed, in
the sense of being the result of a conscious effort, that context comprises of costs for the
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range of potential meanings and that social meaning is constructed by switching on and
off associations. The next question, thus, becomes which are the mechanisms for
establishing new associations and for creating new ones.
4.1.3 Establishing associations and changing the existing ones: the
birth of regulation and the mechanisms for resolving regulatory
problems
In order to investigate Lessig's construction process, we will need to start with his
approach to the relationship between agent and structure or the individual and the social.
In the “Regulation of Social Meaning” (Lessig, 1995c) Lessig refers to Pierre Bourdieu
(Bourdieu, Passeron and Nice, 1977; Bourdieu, Chamboredon, Passeron and Krais,
1991) as a methodological individualist in the sense of linking this process of change of
social meaning to the actions of individuals. The elements of Bourdieu’s work that are
highlighted by Lessig are the “structures of incentives” that the individual is confronted
with when facing with the “negotiation and change” of the “linguistic market”. The
individual is the actor that seeks to change the social but also the recipient of the effort
of the social to change the individual. This is a fundamentally assumption in Lessig's
meaning ontology and provides a key link to his regulatory ontology.
Lessig's understanding of the relationship between the individual and the social is
exemplified in his quest to appreciate problems of collective action. We will use the
“wine pond” example found in his “Regulation of the Social Meaning” (Lessig, 1995c)
as, to the author of this thesis, it is a paradigmatic example of his understanding of the
relationship between individual and social, the problems it poses, the regulatory
implications and the places where we should look for a solution. The puzzle has as
follows: a pond needs to be filled in with wine by the inhabitants of a village for the
local festival. Each villager has to pure in some wine. However, she may pure in water
or wine. If the number of villagers purring in wine is enough, then the overall quality
will not change. There is however a point after which, if villagers keep inserting water
instead of wine, the quality of the overall mixture will be significantly diluted and will
cease to be drinkable. Each villager has an incentive to pure in water in order to
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minimize his individual costs as long as the effect over the overall mixture has not
reached the point mentioned above.
Lessig presents the village and the wine fountain problem trying as a paradigm of the
collective action problem together with a range of possible solutions. In relation to the
latter, he presents three ones:
1. Inspection: in the sense of someone controlling whether a villager is throwing in
water or wine and preventing the villagers from doing the former
2. Shock: each villager would have a mechanism installed in her body that would
cause a shock every time water instead of wine is poured in the fountain
3. Guilt: each villager would feel extreme guilt if she were to pure water instead of
wine in the fountain
The pattern emerging from this problem applies in all three solutions:
1. There is a social end and deviation from supporting that end is individually
sanctioned
2. So long as the sanction to the individual is greater than the benefit from
defecting from a particular social end, the individuals will support that end
3. If the social benefit is greater than the cost of the sanction for the society, then
there is reason for society to create such a sanction
These three assumptions by Lessig provide the foundations for regulatory birth.
Objective of this thesis is not to go deep into norm theory, but merely to explicate
Lessig's understanding of regulation and meaning operation.
Lessig uses Olson’s definition (Olson, 1971; 1982) of selective incentives in order to
classify all his three solutions as selective incentives:
“A selective incentive is any incentive "that applies selectively to the individuals
depending on whether they do or do not contribute to the provision of the
collective good.” (Lessig, 1995c p. 996)
The next step is to try and analyze the operation that a concept like Guilt would have in
the regulation of the individual’s actions in order to solve the problem of collective
action. The logical schema is of the following form:
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1. Guilt is a kind of social meaning
2. It ties to the incentive of the individual
3. Hence, social meanings can operate as selective incentives
Lessig also makes the following logical steps:
1. Social meanings construct a certain semiotic content to an individual act that
gives it a particular characterization such as “cheating” or “disloyal”.
2. Individuals “internalize” these norms and feel their semiotic content
3. This is how regulation through social meaning operates
Lessig draws as a result three conclusions:
1. social meanings can function as selective incentives to induce action according
to a social norm or to achieve a collective good
2. these meanings that are solutions to collective action problems are collective
action problems themselves
3. “The very same influences that induce an action according to a social norm also
induce resistance to efforts to change a social norm.” (Lessig, 1995c p. 997) This
is a compliance result of the social meaning construction. “Social meanings act
to induce actions in accordance with social norms, and thereby impose costs on
efforts to transform social norms.” (Lessig, 1995c p. 997) This results in making
the introduction of any social norm particularly difficult as the costs of changing
the social meanings associated with them are particularly high. As a result
defensive construction of meaning tends to be much easier compared to
expansive construction.
Lessig makes it clear that he is not against expansive/ offensive construction or change;
he just makes the point that it is much easier to make defensive rather than expansive
constructions.
The nature of Commons Lessig is interested in may be divided into two kinds or seen as
having two dimensions: a regulatory or normative dimension (the problem of
constructing a social norm) and an actual resource dimension (the problem of ensuring
the provision of a common pool resource). The two are mutually supportive and operate
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in a self-producing way, but their dialectics need to be put somehow into operation like
a perpetual motion machine that will only stop if enough friction is developed.
Lessig deals in his early work mainly with social norms and their founding social
meaning as problems of collective action, whereas other forms of regulation are not
seen as problems of similar nature. Nevertheless, the provision of both architecture in its
regulatory dimension and law may be construed as problems of collective action.
Actually, when they are not construed as public goods, they cannot fulfill their
regulatory function or they cannot fulfill it in the most effective and efficient way
(sections 4.4.1 to 4.4.3).
Finally, though the problems of collective action are solved with other problems of
collective action, this is not always the case: the electric shock mechanism installed to
the villagers of Lessig's example is not necessarily collectively build (though we could
always argue to the opposite from a material semiotics perspective); however it provides
solutions to a collective action problem. The interrelation between non-public goods as
solutions to common pool resources problems as well as the broader issue of the
mechanisms for the production of public goods in Lessig's theoretical universe is the
theme of the following section of this chapter and will allow us to appreciate further the
link between meaning and regulation in Lessig's work.
4.1.4 Techniques for the construction of Associations
Lessig presents four techniques for changing or constructing social meaning. All four
are about “how links in associations are made or broken, such that texts have or no
longer have associated meanings.” (Lessig, 1995c) They may be grouped into two
types:
1. semiotic techniques: they change meaning directly by interfering with existing
meanings
2. behavioral techniques: they change meaning indirectly by inducing certain
behavior that over time will affect these meanings
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Lessig evokes the image of the meaning manager as a fictional actor, governmental or
non-governmental that “has identified a social meaning that is to be transformed and
must find techniques to achieve this transformation.”
Types of tools for the change of social meaning:
1. Technique I (Tying): In these cases, the social meaning architect or meaning
manager attempts to transform the social meaning of one act by tying it to, or
associating it with, another social meaning that conforms to the meaning that the
architect wishes the managed act to have. The tied text thereby gains some of the
associated meaning of the tied-to text. (Lessig, 1995c) Lessig mentions the
example of M. Jordan in Nike’s or GAP’s commercials. Lessig makes also the
following points:
o it may be used for preserving (defensive construction) or changing
meaning (expansive/ offensive construction)
o it may have a positive or negative value
Lessig refers to the “focusing” of a meaning as an integral element of the tying
process: “by making an association that clarifies the meaning along some
dimension, sometimes by implicitly breaking another link that before existed.”
(Lessig, 1995c p. 1010)
2. Technique II (Ambiguation): “With this technique, the architect tries to give the
particular act, the meaning of which is to be regulated, a second meaning as
well, one that acts to undermine the negative effects of the first.” (Lessig, 1995c
p. 1010) Lessig considers this as a much more interesting technique compared
with the first one. This is because it operates in a counter-intuitive way to the
one we have been accustomed in relation to the operation of law, it being an
instrument of clarifying rather than obscuring things. However, in our case we
have the situation where laws operate to obfuscate rather than clarify meaning.
Lessig makes clear that tying or ambiguation is not always successful. The point
however is not whether these techniques are successful or not but rather which are
the relevant techniques for constructing meaning.
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3. Technique III (ritual): The third technique is behavior-focused and aims at
inducing actions that tend either to undermine or to construct a particular social
meaning. Here Lessig offers the example of the West Virginia schools saluting
the flag ritual or the education example. “Education thus proceeds (1) through a
practice, (2) directed by an authority, (3) that coerces--without appearing to
coerce--acceptance of the substance of what is taught.”
4. Technique IV (inhibition/ coercion): “a regulation designed to inhibit a certain
behavior that would otherwise aid in the construction or reinforcement of a
disfavored social meaning.” Lessig brings the examples of Segregation, real
estate and race, anti-miscegenation and anti-sodomy laws.(Lessig, 1995c)
Lessig highlights the link between the four tools that have been just identified and the
collective action problem:
“All four techniques are solutions to this collective action problem, for each is
transformative of the selective incentives facing an individual, at least so far as
the link, or break of a link, identified in each succeeds in a sufficiently large
proportion of the collective.” (Lessig, 1995c p. 1015)
The point that Lessig raises is even more interesting: the fictional entity of the meaning
manager has the opportunity to do something that individuals on their own cannot do:
the meaning manager is able to add meaning to particular actions or types of behavior.
The meaning manager is able to change the cost of particular actions and thus to change
the social meaning or norms.
Lessig sums up the operation of each of his tools as follows:
“Tying raises (or lowers) the value of the new meaning; ambiguation confuses
its cost; inhibition increases the cost of the old, rejected meaning; rituals serve to
coordinate individuals in support of a new meaning.”(Lessig, 1995c)
Lessig adds an extra qualifier to his construct, namely that there is need for any meaning
manager –particularly if that is the government or any other powerful group- not to be
seen as a source of regulation. He brings the example of doctors providing advice
against abortion or not providing the relevant information as an indirect effort by the
government to produce regulation.
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The point that Lessig makes is that the process of meaning management could also be
seen through the Russian doll or Onion example: it needs to be “laundered” before it is
delivered: this could be done through tying any such effort with any independent third
party e.g. of the anti-abortion advice given by doctors to pregnant women. (Lessig,
1995c)(Lessig, 1996e; 1998d)
Lessig stresses out several times in his work that it is much easier to maintain the
meaning rather than to change it, in the same way it is much easier not to appear as a
regulator than to explicitly appear as such. Lessig brings the example of the communist
ideology in the U.S.: it would be brainwashing to try to turn U.S. citizens into
communists but it is perfectly fine to brainwash the population about the sanctity of the
market or democracy. He refers to the fact that the Americans have been particularly
resistant to any propaganda by the state but do not seem to perceive corporate
propaganda in the same way.
Lessig qualifies successful regulation upon the following conditions:
1. Timing "Like surfers, legislators . . . who wish to change everyday social norms
must wait for signs of a rising wave of cultural support, catching it at just the
right time." (Schwartz, Baxter and Ryan, 1984; Lessig, 1995c)
2. Extent of punishment or proportionality of the punishment. It is also the need to
provide alternatives or accommodations for the deviants “A second limitation is
the extent of the punishment for deviance from the emerging social norm. What
is required for the inducements not to backfire is that punishments be
proportional and that there be alternatives or accommodations for smokers. This
reduces the cost of the emerging norm, and hence makes it easier for the
nonsmoker to feel justified in enforcing the nonsmoking norm. To make the
transition smoothly, both the enforcers and the deviants must be able to treat
each other less as "criminals," and more "as errant family members."”(Lessig,
1995c p. 1031)
The first interesting point he raises is that there is not only tying regulation but anti-
tying regulation as well, the latter being a way to prohibit certain forms of social
construction: for instance successful living with smoking. Another aspect of the
phenomenon Lessig raises is that of ambiguation being based upon what Joseph Raz
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calls “practical authority”, that is “the instinctive desire of individuals to follow social
rules or (…) the instinctive desire of individuals to conform” (Kagan and Skolnick,
1993; Lessig, 1995c) .
Referring to inhibition of certain behavior Lessig explains that it may be effected not by
targeting the whole of the population in one go but rather “narrowly by targeting
specific groups, with the aim to weaken social support for the behavior itself” (Lessig,
1995c).
4.2 Internalization, Immediacy and Plasticity
In this section we further complement Lessig’s model of regulatory construction by
adding three more variables: internalization, immediacy and plasticity.
As mentioned in “Understanding Changed Readings” (Lessig, 1995d), Lessig borrows
the term ‘internalization’ initially from social psychology and specifically from Elliot
Aronson's as one of his three descriptions for three responses to social influence, the
other two being compliance and identification (Aronson, 1995). Lessig will later
(2006d) provide a more comprehensive definition of internalization based on the work
of Cooter (1996a; 1996b) who is also mentioned in the names of the people Lessig
included in his acknowledgements of “Regulation of Social Meaning” (Lessig, 1995c):
“By internalization, Cooter is just describing the same sort of subjectivity that
happens with the child and fire: the constraint moves from being an objectively
ex post constraint to a subjectively ex ante constraint. The norm becomes a part
of the person, such that the person feels its resistance before he acts, and hence
its resistance controls his action before he acts. Once internalized, norms no
longer need to be enforced to have force; their force has moved inside, as it
were, and continues within this subjective perspective. In my view, we should
see each constraint functioning in the same way: We subjectively come to
account for the constraint through a process of internalization. Some
internalization incentives may be stronger than others, of course. But that is just
a difference.” (Lessig, 2006d p. 397)
Lessig further identifies two more elements that regulation may have, that is, immediacy
and plasticity. Lessig provides definitions for both in the New Chicago School (Lessig,
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1998d) and Code (Lessig, 1999f; 2006d), the former being a more comprehensive
explanation of his understanding of these two elements.
“By immediacy, I mean the directness of a particular constraint-- whether other
actors, or institutions, must intervene before the constraint is effective as a
constraint. A constraint is immediate when its force is felt without discontinuity
of time, or agency.” (Lessig, 1998d)
Lessig identifies physical constraints as being the ones with greater immediacy
compared to legal forms of regulation. The greater the immediacy the greater the
effectiveness and efficiency of a certain regulatory modality:
“All else being equal, the more immediate a constraint, the more efficient or
effective it is as a constraint; the less mediated, the less effective or efficient is
its constraint. For one seeking a more effective constraint, then, making its effect
more immediate is one possible way.” (Lessig, 1998d p. 679)
Immediacy is seen by Lessig as a variable that is possible to be changed over time as
well as one that relates to the subjective force of a constraint:
'Immediacy is important in part because of its predictive force. An immediate
constraint is more likely to be effective. But more significantly, immediacy is
important because the immediacy of a constraint can in principle be changed.
The norms of table manners might operate only objectively for a young child;
but over time, they can be made to operate subjectively as well. Whether and
how the immediacy of a given constraint is changed depends on its plasticity.
Some mediated constraints can be made immediate” (Lessig, 1998d)
The way and degree of possible changes of regulation is described in Lessig's work
under the term plasticity:
“Plasticity describes the ease with which a particular constraint can be changed.
(...) Plasticity also describes by whom a constraint can be changed. A constraint
can be either individually or collectively plastic.” (Lessig, 1998d p. 679)
The difference between collectively and individually plastic regulations is one that
relates both to their effectiveness and their democratic character:
“This distinction between collective and individual plasticity is relevant to the
effectiveness of a given regulation. The less individually plastic a constraint, the
more effective it is as a constraint; the more collectively plastic an otherwise
individually nonplastic constraint, the more regulable that constraint is as a
constraint.” (Lessig, 1998d p. 679)
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4.3 Four Modalities of Regulation
One of Lessig's most powerful constructs is that of the four modalities of regulation, a
comprehensive explanation of which appears originally in the New Chicago School
(Lessig, 1998d) paper and then constitutes the underlying theme in Code (Lessig, 1999f;
2006d). Traces of the idea of the four modalities of regulation may be seen in most of
Lessig's papers in the 1990s when he is exploring the links between regulation and
meaning. However, the use of the term modalities and its explicit analysis occurs only
when dealing with issues of cyberspace regulation particularly in the papers of Law and
the Horse (Lessig, 1999g), The Path of Cyberlaw (Lessig, 1995e), The Zones of
Cyberspace (Lessig, 1996f), Reading the Constitution in Cyberspace (Lessig, 1996d),
The Constitution of Code (Lessig, 1997a) and of course the New Chicago School
(Lessig, 1998d). Lessig's four modalities will appear as a background model in most of
his subsequent work (1998d; 1999c; 2000a; 2000b; 2000c; 2000d; 2001a; 2001b;
2001c; 2001d; 2002a; 2002c; 2002d; 2003a; 2003b; 2003c; 2003d; 2004b; 2004d; 2004
; 2006b; 2006c; 2006d) and will be one of the most influential constructs Lessig has
ever produced.
Lessig's definition of regulation is of particular interest as he deviates from the classic
regulatory definitions as seen e.g. in the work of Ogus (1994; 2001; 2002; 2004) which
views regulation as the intentional action by some policy maker:
“As will become obvious, I mean "regulation" here in a special sense.
Ordinarily, "regulation" means an intentional action by some policy maker. (...) I
do not mean the term in that sense. I mean the constraining effect of some
action, or policy, whether intended by anyone or not. In this sense, the sun
regulates the day, or a market has a regulating effect on the supply of oranges.”
(Lessig, 1998d p. 662)
Lessig identifies four modalities or forms of regulation or constraint:
“Behavior is regulated by four types of constraint. Law is just one of those
constraints. Law (in its traditional, or Austinian, sense) directs behavior in
certain ways; it threatens sanctions ex post if those orders are not obeyed. (...)
Social norms regulate as well. (...) Norms constrain an individual's behavior, but
not through the centralized enforcement of a state. If they constrain, they
constrain because of the enforcement of a community. Through this community,
they regulate. So too do markets regulate. Markets regulate through the device of
price. (...) This constraint functions differently from a sanction; so too is its
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meaning distinct from the meaning of a sanction. It is distinct from law and
norms, even though parasitic on law (property and contract) and constrained by
norms (again, one does not "buy" a "friend"). But given a set of norms, and
scarcity, and law, the market presents a distinct set of constraints on individual
and collective behavior. It establishes a third band of constraint on individual
behavior. And finally, there is a constraint that will sound much like "nature,"
but which I will call "architecture." I mean by "architecture" the world as I find
it, understanding that as I find it, much of this world has been made. (...) These
features of the world--whether made, or found--restrict and enable in a way that
directs or affects behavior. They are features of this world's architecture, and
they, in this sense, regulate.” (Lessig, 1998d p. 662)
The choice of four modalities by Lessig is based primarily on the influences he has
received from different authors in relation to each modality [E.g. Reidenberg (1996) for
Technology and later Frug for Architecture (1999), Ellickson (1991; Ellickson, Rose
and Ackerman, 1995; 2002) for Norms] acknowledging that there are sources of
regulation other than the law, what he calls the “departments” of the “old Chicago”
school. The various modalities of regulation may be classified in accordance to their
characteristics, some of which, such as plasticity, immediacy, and degree of required
internalization have already been discussed above (section 4.2). Other features that
emerge out of the New Chicago School relate to whether the regulation is enforced
before (ex ante) or after (ex post) the act that is to be constrained as well as whether the
structure and enforcement of the regulatory modality is centralized or decentralized.
Most of these features provide an indication for the overall tendency of a certain
modality of regulation but do not provide the essential characteristics of each one of
them. As a matter of fact, Lessig has been often criticized for presenting architecture as
a rather deterministic though non essentialist model of a modality of regulation
(Murray, 2007; Murray and Scott, 2002; Mahoney, 2004). The classification in terms of
the four modalities has also been criticized, especially in the European literature by
Murray and Scott (Murray and Scott, 2002) in relation to the way in which the choice of
four modalities lacks the detail of more elaborate structures. Nevertheless, despite any
theoretical flaws that Lessig's construct may have, its simplicity and ease of use have
been enough to make it one of the most widely used tools for analyzing Cyberspace
regulation.
To appreciate the reasons why Lessig opts for such a schematic -and crude- analysis of
the regulatory modalities we need to understand the questions he raises in his work.
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Lessig explores the ways in which the various modalities of regulation interact with
each other. This is done either in the form of combined action or in the form of one
modality substituting the other. Lessig explicates the implications such interactions have
on the regulated object. He acknowledges the fact that the Old Chicago School has dealt
with much of the problems he is working on and particularly the interrelationship
between law and markets (Williamson, Winter and Coase, 1991), law and norms
(Ellickson, 1991) and law and architecture (Foucault and Sheridan, 1979). Lessig is
interested first in providing a schematic about these dialectics and second to raise a
series of questions in relation to the implications they have.
Lessig's key argument is that in such an environment, where regulation is not conducted
merely by the laws, the law is not displaced but has instead acquired an even more
critical role:
“But unlike the old school, the new school does not see these alternatives as
displacing law. Rather, the new school views them as each subject to law--not
perfectly, not completely, and not in any obvious way, but nonetheless, each
itself an object of law's regulation. Norms might constrain, but law can affect
norms (think of advertising campaigns); architecture might constrain, but law
can alter architecture (think of building codes); and the market might constrain,
but law constitutes and can modify the market (taxes, subsidy). Thus, rather than
diminishing the role of law, these alternatives suggest a wider range of
regulatory means for any particular state regulation. Thus, in the view of the new
school, law not only regulates behavior directly, but law also regulates behavior
indirectly, by regulating these other modalities of regulation directly.” (Lessig,
1998d p. 666)
The question for Lessig is what kind of results we seek to achieve with such a mix and
to what extent the checks and balances our legislative system has put in place for simple
law are adequate for this new regulation resulting from the “indirection” phenomenon:
“Regulation, in this view, always has two aspects--a direct and an indirect. In its
direct aspect, the law uses its traditional means to direct an object of regulation
(whether the individual regulated, norms, the market, or architecture); in its
indirect aspect, it regulates these other regulators so that they regulate the
individual differently. In this, the law uses or co-opts their regulatory power to
law's own ends. Modern regulation is a mix of the two aspects. Thus, the
question of what regulation is possible is always the question of how this mix
can bring about the state's regulatory end; and the aim of any understanding of
regulation must be to reckon the effect of any particular mix.” (Lessig, 1998d p.
666)
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Such questions prepare for the section 4.4 where the problems of public law
displacement in an Internet environment are presented.
4.4 Constructing Cyberspace regulation
When Lessig writes Code and Other Laws of Cyberspace (1998a; 1999f; 2006d), he
comes to contribute to an already existing discourse on the regulability of Cyberspace
(Lessig, 1999g) but at the same time, he comes with his own theoretical biases and
research questions that still linger and that will be tested both theoretically and
practically in this new heavily technological environment.
Lessig enters the Cyberspace regulation debate at a moment where the prevailing
opinion is the unregulability of Cyberspace (Johnson and Post, 1996)(Post, 1995; 2000)
to express a dramatically different argument: Cyberspace is inherently regulable and as
a matter of fact the problems in Cyberspace do not have to do with the lack of
regulation but rather with its abundance and most importantly the absence of democratic
character in their construction and operation (Lessig, 1995e; 1996f; 1998d; 1999f).
Lessig will express this opinion in Zones of Cyberspace (Lessig, 1996f), Path of
Cyberlaw (Lessig, 1995e), Reading the Constitution in Cyberspace (Lessig, 1996d),
Post Constitutionalism (Lessig, 1996e), Intellectual Property and Code (Lessig, 1996a)
and most importantly with Constitution and Code (Lessig, 1996-1997), the Laws of
Cyberspace (Lessig, 1998a) and the Law of the Horse (Lessig, 1999g) that will
constitute along the New Chicago School (Lessig, 1998d) the foundations for the two
versions of Code (Lessig, 1999f; 2006d). In all these papers Lessig will expand his
work of the New Chicago School in order to express his view that technology is a
modality of regulation increasingly influencing to a greater extent the rest of the
regulatory modalities and hence its content needs to be regulated. Lessig views
technology as the quintessence of the argument that regulation is constructed and hence
that technology’s regulatory content is equally constructed. Lessig's effort in all his
papers is first to expose the fact that Cyberspace has a regulatory nature; second, that is
constructed; and third that we need to establish mechanisms that allow its democratic
construction. Each of these elements deserves special attention.
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The first element has to do with the relationship between Cyberspace and regulation.
Lessig identifies the dual nature of Cyberspace as an architecture clearly advancing his
New Chicago School argument (Lessig, 1998d): Cyberspace may be regulated and also
function as a form of regulation. These two arguments are often collapsed into one in
Lessig's work but it is instructive to separate them. Cyberspace is presented as
inherently regulable in the sense that the technologies it comprises of may be
manipulated in such a way so as to produce a desired result. It is also regulable in the
sense that such manipulation is possible irrespective of the degree of deviance that
indeed abounds and in early cyberspace existed to an even greater extent. Lessig accepts
that deviance is possible, but this does not cancel out the regulatory effect of
technology.
In being constructed Cyberspace comprises of technologies that define the basics of its
operation. If control over these technologies is possible, then control over cyberspace is
possible. Lessig in his argumentation collapses two arguments: first that cyberspace as a
form of technology is constructed in such a way that other technologies built upon it
may be regulated provided the relevant changes are made. This is Lessig's argument
concerning the nature of Cyberspace as constructed. Second, behavior over the Internet
is much easier controlled as its conditions are set by technology. Combining the first
with the second premise he comes to the conclusion that behavior over the Internet is
easier to regulate compared to the one in the real world.
Lessig's regulatory focus is on the ways in which technology may be manipulated in
order to constrain behavior within a certain context. When the context is comprised of
technology, then Lessig believes that the possibilities of regulating behavior are far
greater than in a non Internet environment where the behavior is not defined by
technology. The fact that there are two different stages in the regulability question, i.e.
regulation of the technology and regulation of the behavior framed by such technology
does not provoke their separate treatment by Lessig. This constitutes one of the basic
limitations of his work on technology as a regulatory modality and is reflected in much
of the criticism he has received (Murray and Scott, 2002).
The second element in Lessig's work has to do with technology as a constructed entity
(Lessig, 1996d; 1996e; 1996f; 1997a; 1998c; 1998d; 1999b; 1999e; 1999f; 1999g;
2000a; 2001a; 2001b; 2002c; 2003b; 2006d). The fact that the Internet is a constructed
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and not natural or given entity is a very crucial aspect of Lessig’s work. First, it means
that what Cyberspace was at the time when Lessig started writing about it would not
necessarily remain the same in the future. Actually much of Lessig's work is devoted in
warning about what Cyberspace could become (Lessig, 2000a). Second, that since the
Internet has regulatory effects, who participates in the construction of cyberspace
becomes a very relevant question in the same way that the question of who participates
to the construction of a regulatory instrument is a relevant question for more traditional
forms of regulation such as the law. Third, that since Internet is constructed and hence
susceptible to change, then there is space for activism, for seeking its content to be
adherent to certain socially agreed values.
By revealing the nature of Cyberspace as constructed, Lessig makes the first step
towards the emancipation of the subjects regulated by Internet architecture: once it
becomes apparent that it is not given, there is space for activism supporting change. It is
not merely that Cyberspace is constructed and as such it requires a response; it is a form
of regulation that needs to be constructed in a way compatible with the values,
principles and traditions on which an agreement within a certain context has been
achieved. The principles according to which cyberspace is to be constructed becomes a
specific self-standing question in Lessig's work.
The act of construction in the case of Architecture is one that involves associations that
do not confine themselves in the realms of non-physical interpretation but are rather
actual associations between technologies and regulations of different modality (e.g.
between technology and law) or level (e.g. between technical standards and End User
Licence Agreements). Lessig does not investigate the issue of the kind of constructions
created further as he focuses more on the exploration of the ways in which participation
in the construction of architecture should be facilitated.
This realization of the constructed version of regulation raises issues of its democratic
pedigree (Lessig, 1989). Lessig examines this part of construction when dealing with
the concept of plasticity (Lessig, 1989) by investigating the degree of plasticity (high or
low) and its kind (collective or individual). His view is that technology is plastic but not
necessarily collectively plastic and his interest is how it is possible to achieve and
maintain plasticity and indeed collective plasticity. This is one of the key questions in
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Lessig's Cyberspace regulation work and relates to the questions he poses in all his
papers regarding the democratic origins of different modalities of regulation.
These links are apparent in the way Cyberspace regulation is treated in relation to
conditions of complexity and uncertainty. Lessig initially views the issue of regulation
and Cyberspace or actually regulation and human behavior over Cyberspace from a
reactionary and legal perspective: his questions relate to how legal regulation should
respond to the radical change in the new context that Cyberspace constitutes. His
answer is that legal response first has to be of an incremental and gradual fashion that
will give space for a better understanding of its operation and second that it has to be
conducted in a way that will allow the transfer of the principles and values of the off-
line world to the online world. The latter suggestion is of particular interest as it links to
issues of constitutionalism Lessig has dealt with in his previous work.
If such values are to be transferred in accordance to the maxim Lessig has provided in
the Fidelity and Translation papers (Lessig, 1989; 1993; 1995b; 1995d; 1997b; 1997c),
it needs to be done by a political body. The magnitude of changes is such that a body
like the courts, which is entrusted with non-political powers, should differ in favor of a
more political body like the parliament, the legislator.
However, and this is the most interesting part in Lessig's response, even the legislator
would not be the institution most appropriate for providing final solutions since there is
still such uncertainty that the legislator is not capable of providing crystallized norms
about how Cyberspace should be regulated. Lessig proposes instead the lower courts as
being the most appropriate for providing answers to Cyberspace regulation questions
noting at the same time that they have to be extremely careful in the way they provide
such solutions.
Lessig's suggestion derives from his understanding of the essence of the democratic
foundations of the Common Law: the democratic pedigree of the process derives not
from the fact that everyone has a word in the formation of a decision but rather from the
fact that decisions are being reached over a span of time and across diverse contexts. In
cases of great complexity and uncertainty such a solution seems to be the best possible
available. Complexity is reduced by spreading the cases across contexts and by
examining each one of them within a specific context; uncertainty is reduced by
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establishing a way of dealing with such problems across time through the repetition of
problems and solutions.
By deconstructing the discourse in which Lessig's Cyberspace papers are placed, his
position in the context of his other writings and the subsequent criticism he received we
may deduct some interesting results. The issues related to cyberspace regulation are
often collapsed into a single question, whereas they should be broken up into two. The
collapsed question is whether Cyberspace should or could be regulated.
Such question may be seen from two perspectives: first, how can the national legislator
respond to the emergence of cyberspace and second, whether there are some
fundamental values that should govern the whole of cyberspace regulation. Lessig's
response to the former of the sub-questions is indicative of his response to the latter.
Lessig is clear that behavior on Cyberspace may be regulated because technology
inherently has regulatory properties and is to a certain extent malleable or plastic. This
leaves the second question open. For Lessig, the real question is the latter rather than the
former. How should we decide to form Cyberspace so as to regulate our behavior over it
is the essence of any regulatory question about cyberspace. Not very surprisingly,
Lessig's question is a constitutionalist's question: who or what is the meta-regulator in
cyberspace? Extending such question Lessig asks how should we discover or construct
such a meta-regulator and what should the role of the law in such a process be.
4.4.1 The locus of regulatory building over Cyberspace
Before proceeding to Lessig's next set of research questions that will assist in our
exploration of his ideas, we would like to return to and summarize two of his techniques
for identifying the proper regulatory response for Cyberspace and his idea of the kind of
constitutional politics that would be the most appropriate. In terms of the regulatory
response Lessig presents the heuristic of Common Law as one that could deal with the
complexity and uncertainty of Cyberspace through a spread in time and context and that
being the most democratic solution by managing to capture in the regulatory solution
the multiplicity of situations rather than merely the multiplicity of opinions. In terms of
a fundamental regulatory text, Lessig following the example of the post-communist
Europe, he would suggest the collapse of constitutional and common politics through a
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transformative rather than codifying Cyberspace constitution. Going back to the
“Derivability” paper Lessig will evoke Holmes and Sustein (1995) and Levinson (1995)
to suggest avoiding the idealization of the constitution and instead “dragging” it into
common politics so as to involve the maximum amount of actors:
“As Holmes and Sunstein write, "Let constitutional politics collapse into
ordinary politics. . . . Let the constitutional process drag on for several years, one
pro tempore arrangement replacing another."” (Lessig, 1996c p. 877)
It is at this stage that we need to highlight the main elements in Lessig's research project
regarding the identification of a Cyberspace meta-regulator. One of the primary
mechanisms is the investigation of the regulatory conditions in multiple contexts. We
have seen Lessig emphasizing the role of the communities as a regulatory form that
produces norms in his “Regulation of the Social Meaning” (Lessig, 1995c). In Zones
(Lessig, 1996f) as well as in the “Law of the Horse” (Lessig, 1999g), “Code” (Lessig,
1999f) and the “Future of Ideas” (Lessig, 2001b) Lessig spends substantial length in
investigating communities in Cyberspace. Lessig is interested in the way their norms
develop as well as in the ways in which they constitute places where norm development
and enforcement takes place.
The second element Lessig is interested in is that of Internet's “natural” regulatory
geography or how the different technologies of regulation are incorporated in the
original Internet Protocols: what kind of regulation do they allow for and what they tell
us about the kind of regulation we should look for on the Internet. This is the part of
Lessig's work that is most influenced by the work of Cyberlibertarians though Lessig is
always interested in the regulatory dimension of the response it evokes. Lessig explores
thus the world of the “original” or early Internet as a “free” space, a space where there
are no restrictions or if there are any, they are in the form of borders not boundaries. In a
series of papers starting from the “Zones of Cyberspace” (Lessig, 1996f), “Post
Constitutionalism” (Lessig, 1996e), “Reading Constitution in Cyberspace” (Lessig,
1996d), “Code” (Lessig, 1999f), “The Architecture of Privacy” (Lessig, 1999e),
“Zoning Speech on the Internet” (Lessig, 1999b), “Cyberspace and Privacy” (Lessig,
2000c), the “Death of Cyberspace” (Lessig, 2000a) and of course the “Future of Ideas”
(Lessig, 2001b), Lessig will deal with a transition from a world without boundaries to
one with multiple boundaries. The word “boundaries” is often used by Lessig to express
something similar to constraints or regulations. The main difference between the two
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worlds is the need for permission to be granted on the basis of the zone in which an
individual belongs in order to perform actions that in the original Internet were
unconditional.
Lessig is interested in the way in which this transition from open or free environments
to closed ones occurs with the assistance of the law and without the involvement of the
regulated subject. This new regulatory trend has four distinct features: first, it
demarcates a transition from non controlled to controlled, permission based or zoned
environments; second, the regulatory features of technologies are employed in order to
perform such transition; third, this transition is being done with the support of the legal
regulation; and fourth, the law is not controlled by the regulated stakeholders but by
private entities not reflecting the same considerations of balance that the public law
provided.
Lessig refers to the work of Richard Ford (1994) and Jerry Frug (1996) in order to
describe the movement from a world where open access in real space is possible to one
where access is restricted and how this may be effected through the use of architectural
or other devices. He also refers to the work of Monroe Price (1995) in order to show the
movement from an open terrain to a closed one: “(…) from a world where boundaries
are borders, to a world where boundaries are walls.” (Lessig, 1996f) It is interesting to
note that the reference to architectural terms in his earlier work has been done in
relation to physical spaces where architecture plays a prominent role.
The question that Lessig raises –and is at the core of his work- is how democratic is this
process of defining the code as regulation: engineers are the ones that write it and as
such they are not democratically accountable, unless market is regarded as a form of a
democratic process.
Lessig puts the main problem with the creation of code as regulation by engineers in the
following schema: we move away from democratic control and into the realms of a
marketplace; the problem is one of moving from the stage where we construct our
choice to a place where we are merely making predetermined choices:
“Even so, note the trend: the progression away from democratic control. We will
stand in relation to these places of cyberspace as we stand in relation to the
commodities of the market: one more place of unending choice; but one less
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place where we, collectively, have a role in constructing the choices that we
have.” (Lessig, 1996f p. 1410)
Choice is again Lessig’s prevalent theme:
“These questions point to a choice, about what cyberspace will become. One
alternative is an open space; the other closed. I don't mean these are the only
choices. Architectures don't come in natural kinds. My point instead is the
choice—that there is a decision to be made about the architecture that
cyberspace will become, and the question is how that decision will be
made.”(Lessig, 1996f p. 1410)
Lessig is interested in the locus of these decisions: “where” are these decisions taken
and which is the result of a market vs. democracy logic. In his own words:
“Or better, where will that decision be made. For this change has a very
predictable progress. It is the same progress that explains the move to zoning in
cities. It is the result of a collection of choices made at an individual level, but
no collective choice made at a collective level. It is the product of a market. But
individual choice might aggregate in a way that individuals collectively do not
want. Individual choices are made within a particular architecture; but they may
yield an architecture different from what the collective might want.” (Lessig,
1996f p. 1411)
Lessig up to this point has identified two classes of issues in relation to the transition
from an open to a closed environment in Cyberspace. The first relates to the content and
the second to the structure of the transition. The content has to do with the transition to
an environment where more perfect control is possible through the employment of
technologies allowing less possibilities of deviance. The structure has to do with the
level and kind of input to the new regulatory environment.
Lessig focuses on two modalities that provide the end regulatory result, technology and
law. Technology because it may be privately owned and it may be privately formed in
accordance to the needs of a particular stakeholder and without the input of the
community.
Similarly, the regulation through the law is not effected merely on the level of
supporting such technologies through various Intellectual Property regimes but further
through the use of private agreements in the form of EULAs that allow the tailoring of
the legal rules to serve the needs of a particular stakeholder. The pattern is here similar
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to the one described in the case of technology: the control of the regulation moves from
the public to the private sphere.
4.4.2 Private Ordering, Free Open Source Software and the
Commons
While looking for the meta-regulator in Cyberspace, Lessig has stumbled upon the rise
of private order in Cyberspace. Lessig will express his concerns as early as in the
“Constitution of Code” (Lessig, 1997a) which is the sister paper of “IPR and Code”
(Lessig, 1996a).
“Code is a kind of private law, protecting the interests of the author; but unlike
the public law protecting the interests of the author (copyright), nothing
guarantees that code will preserve the public values implicit in that public law.”
(Lessig, 1997a)
As expressed in a series of papers dealing with the limits of constitution in Cyberspace,
Lessig's problem is that existing institutions like the courts or the legislator cannot
provide a series of uniform democratic principles on the Internet. This is the result first
of the lack of a single jurisdiction and second of the lack of the appropriate tools that
could provide a series of values to which we should adhere to over Cyberspace. Lessig
does not differentiate between the two aspects of the problem, content and structural at
this stage and this is particularly important as it implies his acknowledgment of the
interrelation between the two.
By the time of publication of Lessig's third book, “Free Culture” (Lessig, 2004d), most
of his predictions in the “Future of Ideas” (Lessig, 2001b) have been confirmed.
Cyberspace was increasingly following a trajectory towards private ordering and
regulatory zoning. Lessig's research interest has accordingly changed towards a
direction following Barlow's original Declaration of Independence (Barlow, 1996):
Lessig was increasingly trying to identify the regulatory features of the free
communities in Cyberspace and see how he could interface them with the existing state
derived regulatory structures. The way in which Lessig's research agenda has been
formed in the late 1990s and after 2000 is the result of the impasses to which his
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previous research has led him. In “IPR and Code” he identifies this frustration with
existing meta-regulatory instruments:
“My claim is that our ideas, or intuitions, about how to preserve the space of
liberty that our framing document left, do not translate well when confronted by
code. Code confuses us.” (Lessig, 1996a)
In the “Constitution in Cyberspace” he will express his concerns about the politicization
of code:
“(...) we need to think about who is making the code. If code is political, then it
is not the task of engineers alone. If there are fundamental questions about how
cyberspace is to be structured, these are questions that should be addressed by
the citizens of cyberspace. If code constitutes cyberspace, then citizens must
choose the code. But as it is, the architecture is the product of private interests--
whether the relatively open Internet Engineering Task Force or the absolutely
closed Microsoft Corporation.” (Lessig, 1996-1997)
After realizing the rise of the private ordering and the failure of public regulation to
avoid capture -let alone resist to such a trend- Lessig has actively sought with papers
like the “Architecture of Innovation” and “Open Societies” to identify the regulatory
features of the systems of code production featuring the most democratic characteristics.
In his subsequent papers Lessig's research strategy shifts towards the examination of
two phenomena: first the one of Free/ Open Source (Lessig, 1996-1997; 1999a; 1999c;
1999d; 2000d; 2001a; 2001b; 2002a; 2002c; 2002d; 2003a; 2003c; 2004b; 2004c; 2004
; 2006b; 2006c); second, the way in which the privatization of regulation delimits
particular domains of action as well as the implications such zoning may entail (Lessig,
1996f; 1997a; 1998c; 1999b; 2000a; 2001a; 2001c; 2001d; 2002a; 2004c; 2004 ;
2006c).
In the study of FLOSS Lessig will focus on those characteristics of the production of
code that seem to be the most important for providing access to the regulatory process
in a way similar to the one we have seen in the public forms of regulation. Lessig is
influenced by the work of Moglen (1997; 1999) and Benkler (1998; 1999; 2000; 2001;
2002) on the properties of FLOSS and will present it as a way of building code that is
most compliant with his idea of participation without necessarily identifying it with a
pure democratic process. A closer look into Lessig's influences in relation to Open
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Source is revealing of the type of problems to which he seems to be looking for a
solution. To do that we will need first to revert to the notion of code as regulation and
the process of its construction.
We have repeatedly presented the way in which code is viewed as a form of regulation
by Lessig and, as a matter of fact, a constructed form of regulation. In the “New
Chicago School” Lessig (1998d) has used the metaphor of construction for code in
order to draw a parallel with meaning construction adding to it that the construction is in
the case of code taking place in the literal sense of the word. Going further back to the
“Regulation of Social Meaning” (Lessig, 1995c) we have seen how Lessig would
present the problem of social meaning construction as a problem of collective action.
We have also seen how he suggested using various association construction techniques
in order to solve selective incentives problems.
Returning to FLOSS and to Moglen's (1997) understanding of the whole phenomenon
as expressed first in Benkler's (2002) and later in Lessig's work (2001b; 2004d; 2006b;
2006c), the problem of selective incentives is resolved through the establishment of a
Commons Based Peer Production (CBPP) mechanism. Benkler and Moglen before him
see the FLOSS as a model that allows the production of code in a decentralized but
coordinated way that constitutes a reflection of the way in which the Internet operates.
The interesting part in Moglen's work is that he poses the question not as a question of
how incentives may be provided for someone to produce software but rather as a
question of how to remove the friction for such production to occur. The problem for
Moglen is not that there are not enough incentives but rather that there are lots of
constraints. The question for him is not hence how to create mechanisms for
encouraging incentives but rather how to create structures that remove frictions.
Benkler and Moglen are focused on the production and innovation part of the FLOSS
phenomenon but in Lessig's work FLOSS has a primarily political dimension: it reflects
a mechanism that provides a solution for the creation of associations and solves the
construction problems seen in Lessig's earlier work regarding meaning construction.
Such conceptualizations are seen in his “Open Code and Open Societies” paper (Lessig,
1999c) but also in the “Free Software Free Society” (Lessig, 2002d). The underlying
message of this part of Lessig's work is that the way in which such forms of production
are organized allows a kind of participation that is not exhausted at the level of making
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choices as is the case for instance in a scenario of regulatory arbitrage but rather allows
the individual to participate in the construction of the regulation.
Another reason why FLOSS is of particular interest to Lessig is that it constitutes, as
Lessig is aware of [see for instance his references in the first and second editions of
Code (Lessig, 1999f; 2006d)], a continuation and crystallization of the mode of
operation and ethos of the Internet Protocols by the Internet Engineering Task Force.
Richard Stallman with the creation of the General Public Licence crystallized in the
form of a Copyright licence the social norms underlying the construction of the Internet
Protocols, which to Lessig have a primarily regulatory nature (Stallman, 2002). Lessig
has never concealed his admiration for Stallman's work and for the General Public
Licence (Lessig, 2005i; 2005j). Lessig’s interest in Stallman’s work may be attributed
among other reasons to the fact that it constitutes the paradigm of what Lessig was
looking for in the form of a meta-regulator on the Internet.
The GPL functions as an interface-concept between the social norms of the Internet and
the state regulation that Lessig is looking for. It is in a sense this hybrid that represents
in its best the Cyber-libertarian realism Lessig seems to be adopting in his work.
Though it constitutes private regulation in the form of an End User Licence Agreement
it contains many of the features that Lessig finds in public regulation. This makes us
revisit Lessig's Cyber-paternalism not as an essentialist but rather as utilitarian stance:
what he is mostly interested in is the representation and participation objectives to be
materialized. Whether the state will continue to play a key role in the realization of such
objectives is not as important as he materialization of the objectives themselves. The
state is instead presented as an existing institution that cannot be ignored and as such
sets the framework, the field or the formative context in which different forms of
regulation to be rolled out. What we will further argue in the analysis of the Creative
Commons case is that in the same way Lessig believes that the meaning context is
subjected to change, similarly the regulatory formative context is constructed and
through a series of mechanisms it may be also subjected to change.
In that sense the GPL constitutes an example of or a challenge to the way in which the
legal regime operates in Cyberspace: if Copyright as a public form of regulation is
indeed an impartial form of regulation then it should facilitate a mode of private
regulation characterized by the existence of public values. The GPL constitutes an
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acceptance of the fact that Law is still a relevant modality in cyberspace and that private
agreements in the form of licences constitute much of the meta-regulators that set the
conditions for the way in which the technology is built. It also constitutes a strong
indication that the meta-regulator Lessig is looking for will not appear in the form of a
uniform and monolithic but in the form of a decentralized and differential instrument.
Lessig focuses on the elements of the GPL that support innovation and will concentrate
in particular in its end-to-end features (Lessig, 1999c; 1999d; 2001b; 2002a; 2002d;
2003a). Lessig initially explores these ideas in the “Architectures of innovation”
(Lessig, 2001a) and further analyzes them in the “Future of Ideas” (Lessig, 2001b).
There, he also presents the principles of End-to-End architecture the Stupid Network or
the Humility principle as the basic concept supporting the innovation model of the GPL
and as essentially being the principle behind Moglen's (1997) idea of removing the
obstacles from the Network in order to achieve innovation.
The ability to participate in the construction of code and the definition of its regulatory
characteristics seems to be conditioned on pragmatic and legal circumstances. The
pragmatic conditions relate to the ability of the individual to program or participate in
the discussions related to the production of code; the legal conditions relate to the
obstacles raised by the law to participate in such discussions even if the pragmatic
conditions are fulfilled. Moglen's equivalent of the Faraday law for the Internet as later
expressed in Benkler's work on Commons Based Peer Production (Benkler, 2002)
expresses precisely the capacity of Internet Technologies to remove the obstacles for a
broader participation in the construction process.
In this framework of thinking, the concept of innovation or the concept of End-to-End
architecture is translated politically as a structure that provides more possibilities for
new opinions to be expressed and debated. What is crucial here is to elaborate on the
operation of the structure supporting the political process of construction of the
regulatory artifact and its presuppositions, whether we call them code, meaning or law:
the structure or the meta-regulator does not operate in the same way as Lessig describes
regulation: it does not operate as a constraint but rather as an enabler. The meta-
regulator remains agnostic of the regulatory will of the ends; following the steps of the
Stupid Network principle, the Cyberspace meta-regulator model is that of a “stupid” or
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“hollow” regulator: It lacks any regulatory content; it needs to remain “humble” and
listen to what the ends have to say (Lessig, 2001b).
Incarnations of this model are found in abundance in the Internet Context: the Internet
Protocols are a good example. Lessig devotes a great part in all his books, “Code” in
both versions (Lessig, 1999f; 2006d), “The Future of Ideas” (Lessig, 2001b) and “Free
Culture” (Lessig, 2004d) as well as a series of papers like “Commons and Code”
(Lessig, 1999a), “The Death of Cyberspace” (Lessig, 2000a), “Open Access to Cable
Modems” (Lessig, 2000d) and “Architecting Innovation” (Lessig, 2001a) in exploring
such models and in describing how the Internet Protocols are constructed and operate.
The World Wide Web is presented as another example of a technological incarnation of
such a principle. The way in which the decision making process in the Internet
Engineering Task Force and the WWW Consortium takes place is an organizational
crystallization of the same principle. The various Internet Communities and mailing lists
are the community expressions and the GPL and the other open and free licences are the
legal manifestations of the same idea.
4.4.3 The regulatory dimension of the concept of commons
Two elements from Lessig's approach of the Commons Based Peer Production
phenomenon and its incarnations are of most relevance to this thesis: first, his focus on
the GPL as a mechanism that constitutes the missing link between the early Internet and
a way to achieve a degree of self-commitment in the future Internet; a tool for
preserving much of the principles found in the early Internet that have managed to
support innovation. Second, the multiple examples of application of the e2e principles
and in particularly the relationship between (a) an open process for the production of an
artifact with regulatory features such as the Internet Protocols and (b) the end product
being itself a regulatory artifact that allows the production of other regulatory artifacts
with open principles. This Russian Doll or Onion structure is reminiscent of Lessig's
earlier work on collective action problems (Lessig, 1989; 1993) and the links between
meaning and norms (Lessig, 1995c; 1996b), though here the focus is slightly different,
that, is on how open regulatory artifacts facilitate the production of more open
regulatory artifacts. Lessig does not establish any causality between the two but
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following Moglen (1997) and Benkler (2002) illustrates the reasons why such tactics are
beneficial for innovation purposes.
Lessig oscillates between the concepts of free speech and property. Revisiting the
Regulation of Social Meaning (Lessig, 1995c) can be proved again extremely useful to
understand the implications of using those two concepts. In that paper, Lessig asks the
question of how unconstrained or free access to the creation of meaning may be
preserved and which is the operation of the Free Speech doctrine in the US constitution.
Through such an analysis Lessig concludes that social meaning is regulated not merely
by the state but also by other regulatory modalities, which even lack the institutional
legitimization of the state and that in the existing regulatory and U.S. constitutional
framework are left unconstrained. These new regulatory forms are able through the
manipulation of the context, of the essential understandings of the society, to change
social meaning without the state to have the devices to regulate them.
His call is one that echoes his later Cyber-paternalism, that is, the need for the state to
intervene to allow the operation of a space free of regulations. Lessig will advance this
argument in a series of papers dealing with issues of Free Speech (Lessig, 1995c;
1998c; 1999b; 1999c; 2001b; 2002d) and Intellectual Property Rights and the Internet
issues [e.g. (Lessig, 1995c; 1998c; 1999b; 1999c; 2001b; 2002d)(Lessig, 2004a; 2004b;
2004 )]. In the latter, Lessig will present how the operation of private agreements and
technologies with the support of provisions of the kind of the Digital Millennium
Copyright Act and the WIPO treaties will support the subsistence of property rights
over regulatory forms such as technology and increasingly threaten to appropriate free
culture. In that sense, Lessig speaks of an enclosure of culture and a potential enclosure
of meaning that needs to be resisted. Lessig sees the enclosure of content through
Copyright Laws supported by the application of private agreements and technological
measures as an attack against free speech. He thus objects to the expansion of Copyright
over the Internet through his participation to the Eldred Case with no particular success
(Lessig, 2004c). It is important to realize that all these issues arising from the enclosure
of culture are symptoms of the deeper problem of the decreasing of participation to the
regulation production process.
We need to underline the qualitative difference in the argument found in the
“Regulation of Social Meaning” (Lessig, 1995c) compared to the argument in ‘Free
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Culture” (Lessig, 2004d). In the former, the state law is presented as inadequate to
protect free speech and the need for some new protection mechanism is sought. In Free
Culture the argument is advanced: the state law is not merely inadequate; it has been
captured and subverted by private interests so as to support them rather than the public
interests. Whereas state intervention was required in the first argument, in the second it
is not clear whether it is a different and more forceful state intervention that is required
to absolve the outcomes of previous interventions or the abolition of captured state
regulation is the desired objective. The problem is that in order to achieve Free Speech
or Free Culture what is needed is a non-regulation zone, which nevertheless in a multi-
source regulation world is neither feasible nor realistic an option. As a result, other
solutions need to be sought.
An instance in Lessig's professional trajectory that may be helpful for appreciating his
stance in relation to the establishment of Free -as unregulated- spaces is his involvement
in the Microsoft case (Levy, 2002). The Microsoft case may be described crudely as a
competition law or anti-trust case, in other words as a case where someone obstructs the
entering of other actors to a playing field under the same terms and conditions. Lessig's
view of the commons, of the public domain is very much close to an access to essential
facilities doctrine and is, in that sense, very much influenced by Richard Stallman’s
conceptualization of Free Software as well as of the operation of the Internet Protocols:
in an ideal world the access to these commons would be free both of any charge and any
obligations of other kind; however, in the absence of such conditions we could opt for
the second best solution of the commons as a space where access is provided on non-
discriminatory terms (Lessig, 2004b; 2004c; 2004d; 2004 ; 2006b; 2006c).
To this conceptualization coming from anti-trust law we need to add a further element
derived from Lessig's US constitutional and cultural background as well as his
conservatism: that of respecting the private property. In all of his work Lessig has been
an advocate of conservation though a particular kind of conservation, that of innovative
conservation. From his early fidelity and meaning papers to the cyberspace regulation
period of his work to his latest papers on the public domain or the books on Free
Culture and the Future of Ideas Lessig's work talks over and again about how it is
possible to adhere to traditions, principles and values of the past. However, Lessig is
interested in adhering to such creatures of the past for the reason of them constituting a
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social agreement that needs to be honored. If it is to change, Lessig seeks to make sure
that some meta-regulation mechanisms will be in place to maintain participation while
preserving autonomy of the individual. Lessig holds that in the Cyberspace environment
the state regulation is still relevant. Hence, private property legal conventions such as
the ones of Copyright are still valid and need to be respected even if such property
rights are the ones responsible for the privatization of the regulatory environment.
Combining these two features of Lessig's understanding of the common space we get
his version of the way in which it may be constructed: The Commons or the Free
Culture may be construed as an area where access either is not hindered or is available
under non-discriminatory terms. Nevertheless, this is not due to the fact that permission
is not required but rather because permission has been already granted. The Free space
that will emerge is not a space regulated under a single set of rules but rather the net
result of a myriad of permissions that have been granted in advance. In such a system
we remain agnostic with respect to the content of the regulation. Provided that a series
of proprietary relationships and state regulations still exist and are relevant, the effort to
produce such a free space should be focused on the provision of the tools so that it is
possible to be produced. The construction of the regulation through the provision of the
meta-regulatory tools will occur in the same way as the meaning construction described
in the “Regulation of the Social meaning”. Accordingly, similar tools need to be
employed (sections 4.1.3).
What is the most important aspect of Lessig's work is perhaps that his understanding of
this Commons is that of commons as in common law rather than commons as common
property: this new commons is to be created as a result of the osmosis of a multitude of
different micro-regulatory environments placed across time and context. The orientation
of such commons is one directed towards unhindered access and interoperability of
micro-regulatory regimes. The details in which these tools are to be affected are not
covered in the theoretical part of Lessig's work, though we have seen a rather
comprehensive account of its conceptual biases. For this implementation we need to
revert to the particulars of the Creative Commons case which is the theme of the sixth
and seventh chapters.
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4.5 Positioning Lessig’s work in the relevant literature
In the previous sections we presented the fundamental constituents of Lessig’s
regulatory ontology. This section illustrates the links that may be drawn between
Lessig’s work and other writings from regulation, Free Libre Open Source Software
(FLOSS) and Information Infrastructures (II) literature. The objective is not to claim
that Lessig has been necessarily influenced by the relevant literature, but rather that we
may position his work within the broader literature seeks to explore the regulatory,
FLOSS and II phenomena. This chapter is divided in three parts: in the first part we
explore the aspects of the regulatory theory that are closest to concepts employed by
Lessig; in the second part we identify characteristics of the FLOSS model that have
been relevant to Lessig’s regulatory model; the third part approaches a certain set of
authors dealing with II and are influenced by Actor Network Theory to draw links
between the notion of the Information Infrastructures designer and the meaning
manager or cultivator of regulation as seen in Lessig’s theory and the CC case
respectively.
In relation to regulatory theory, there are three basic features that relate most to Lessig’s
work and the theme of this thesis (section 4.5.1): First, the changing concept of
regulation and the respective ways of understand such phenomenon; second, different
types of problems related to the regulatory phenomenon; and third the issue of non-state
regulatory actors and the problem of lack of participation in the formation of regulatory
instruments.
With respect to the FLOSS literature in section 4.5.2 we are interested in the features of
FLOSS development and FLOSS related research that resemble the regulatory
commons model we present in chapters six and seven and Lessig’s theory we have
described in chapter four.
Finally, in relation to standards and Information Infrastructures, section 4.5.3 initially
explores the relationship between the FLOSS model and the Internet Engineering Task
Force organizational structure and operation to then view how such model relates to the
CC and iCommons organizations. It also examines how the understanding of standards
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and IIs from an ANT perspective resembles Lessig’s understanding of regulation and
also links to the regulatory theory presented in section 4.5.1.
The positioning of Lessig’s work within the aforementioned streams of literature is
important as each one of them relates to a different aspect of his work. In addition, a
presentation of different theoretical approaches to some of the problems Lessig has
investigated allows us a better understanding of the theoretical concepts that Lessig has
developed.
The regulatory theory is the one that most clearly relates to Lessig’s research. As we
have mentioned in sections 4.1 to 4.4, Lessig’s research is primarily focused on an
assessment of the regulatory phenomenon with respect to change and the technology
factor. The literature presented in section 4.5.1 features the latest developments in
regulatory theory and investigates two aspects of the relevant body of work that are
most relevant to this thesis: first, how regulation is increasingly produced by sources
other than the state; and second what are the implications of such developments for the
role of the sate. The regulatory literature explores how the role of the state changes from
one aiming at the production of rules to one aiming at their cultivation. In such new
context, the role of participation and representation is to be reassessed and the role of
technology to be questioned.
Linking Lessig’s work with FLOSS related research is also important for understanding
the foundations of the former’s research and their applications in the CC project. Lessig
has been a vocal advocate of the applications of FLOSS beyond software and has been
particularly influenced by Moglen (1997) and Benkler’s (2002) work. Section 4.5.2
investigates which are the features of FLOSS that are most relevant to Lessig’s work
and the CC project. It also explores the characteristics of FLOSS-related research that
are close to the features of Lessig’s work. Section 4.5.2 illustrates the implications of
viewing software as regulation and regulation as software in relation to Lessig’s work.
Finally, in section 4.5.3 we relate Lessig’s work with the ANT influenced work on
Information Infrastructures (IIs) and standards. Two aspects of the relevant work are of
relevance to this thesis: (a) approaching technology as a control mechanism and the
standards as a form of agreement that, nevertheless, (b) cannot be controlled or designed
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but has to be cultivated or hosted. These two facets of the IIs literature further
emphasize the links with the regulatory theory, FLOSS research and Lessig’s work:
Regulatory theory similarly to Information Infrastructure and Standards literature views
technology as an instrument of control whereas it acknowledges that, like any other
regulatory instrument, it may only be cultivated and not designed. FLOSS as a
development model has been based on the development principles of open standards.
Finally FLOSS constitutes a paradigm for a model which allows a discourse-based and
decentered development of technology as regulation or regulation as technology to take
place.
4.5.1 Positioning Lessig’s Work within Regulatory Theory
Lessig’s definition of regulation seems to depart from what is described in literature as
“Command And Control” regulation (CAC) as expressed in the definition by Ogus
(2004) as quoted by Lessig (1998d p. 662). This understanding of regulation as solely
driven by the state and as the result of designed policy action seems increasingly
obsolete. To quote Black (2001b p.105):
“As many have noted, “command and control” is more a caricature than an
accurate description of the operation of any particular regulatory system, though
some are close to the caricature than others. Essentially the term is used to
denote all that can be bad about regulation: poorly targeted rules, rigidity,
ossification, under- or over-enforcement, unintended consequences.” (Black,
2001b p. 106):
Black identifies CAC with what she calls “centred” regulation and presents a series of
its features, namely that it assumes (a) “the state to have the ability to command and
control” (b) the state “to be the only commander and controller” (c) the state “to be
potentially effective in commanding and controlling” (d) regulation “to be unilateral in
its approach (governments telling, others doing)” (e) regulation “to be based on simple
cause-effect relationships” and (f) “a linear progression from policy formation through
to implementation” (Black, 2001b p. 106).
The image of “centred” or CAC regulation does not easily match Lessig’s regulatory
perspective that is closer to the concept of governance than that of government. Trying
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to define the regulatory phenomenon, as Brownsword notes (2005; 2006), is
increasingly becoming a daunting task precisely because “[r]egulation has become an
unwieldy concept”. There seems to be a variety of definitions of the regulatory
phenomenon that follow a broader trend of moving away from a strict sense, state-
centered regulation as described above to a more “decentred” (Black, 2000; 2001a;
2001b; 2002b) or “smarter” regulation (Baldwin, 2005; 2006) that is now positioned
within a “post-regulatory state” (Scott, 2004a).
Black identifies the core of the difference between “centred” and “decentred”
approaches to the regulatory phenomenon as the outcome of fundamentally different
ontological assumptions about both what constitutes regulation but –more importantly-
about the nature of the society in which regulation is to be placed (Black, 2001b). Black
identifies seven aspects of a “decentred” approach to regulation: (a) complexity, both in
the sense of causal complexity and “complexity of interactions between actors in
society” (b) fragmentation and construction of knowledge (c) fragmentation of the
exercise of power and control (d) the recognition of the autonomy of the social actor (e)
“the existence and complexity of interactions and interdependencies between social
actors, and social actors and government in the process of regulation” (f) “the collapse
of public/ private distinction in socio-political terms, and a rethinking of the role of
formal authority in governance and regulation” (g) “the set of normative propositions as
to the regulatory strategies that should be adopted” (Black, 2001b p. 110)
Each of Black’s points may be used in order to further explicate Lessig’s approach to
the regulatory phenomenon and to position his theory within the relevant regulation
literature. Complexity and its relation to regulation is an overarching theme in Black’s
work [e.g. see (Black, 2000; 2001a; 2001b; 2002a; 2002b; 2003; 2005; 2007)]. In a way
similar to other authors before her, such as Grabosky (1995) or Braithwaite and Drahos
(2000), Black acknowledges the complexity both of the environment within which
regulation is to be placed and the relationship between the regulatory subject, the
regulator and the regulatory content. The assumption of having to deal with a complex
setting is incompatible with an understanding of the regulatory effort as a mechanistic
process that may wield the desired result just through careful in advance design. In
Black’s aforementioned points, complexity predominantly appears under (a) and (f); it
is however present in almost all the aspects of her “decentered” approach.
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The problem of complexity both as an external (the environment in which regulation is
to be placed) and internal (the complexity of the regulatory instrument itself) is also
dealt with in Lessig’s work. His approach to the phenomena of regulation and meaning
are away from any positivistic perspective [e.g. in (Lessig, 1989; 1993; 1995c; 1996b;
1996d)]. The way in which he sketches various regulatory solutions [e.g. in (Lessig,
1995c)] implies an acceptance of an environment of great complexity that cannot be
tackled with instruments assuming linear cause-effect relationships between regulation
and its effects. In addition, Lessig introduces the element of uncertainty in his work as
he is primarily interested in the relationship between change and regulation (sections
4.1, 4.1.1-4.1.4), the latter operating both as a response to and as a driver of change.
The issue of how regulation responds to contextual change introduces the pressing
problem of uncertainty and complexity in regulatory design. Particularly in the online
environment Lessig aims at identifying those regulatory instruments that are the most
appropriate for handling increasing complexity and uncertainty. As mentioned in
section 4.4.2, Lessig’s interest in FLOSS stems from an understanding of such a
development model as a way of tackling problems of complexity and uncertainty in
regulatory development. In the same way as software development has found many
solutions to the aforementioned problems [e.g. Von Krogh and Hippel (2006) or Von
Krogh and Spaeth (2007) making reference to Brooks’ (1995) work] through the
FLOSS development model, regulatory development in Lessig’s work appears to be
seeking for the development of related open ended models.
The second aspect of Black’s “decentred” regulation, i.e. the fragmentation and
construction of knowledge, follows the complexity issue and is particularly relevant to
the “distantiation” phenomenon described in section 3.6 of this thesis. Black refers to
two aspects of the phenomenon of information asymmetry and regulation that are
relevant to this thesis: first that the regulated subject may have greater knowledge than
the regulator in relation to the problem domain; and second, that there is not a single
actor that could have all the necessary knowledge in order to provide the relevant
regulatory solution. As Black notes (2001b p. 107), this is not something new and the
self-regulation approaches are to a great extent attempting to resolve this problem,
particularly in relation to its former aspect by providing more regulatory power to the
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regulated subject. However, what the “distantiation” phenomenon implies is that such
information asymmetry is very likely to increase the costs of enforcement and
potentially lead to regulatory failures. The idea of an end-to-end regulatory model, as
presented originally in section 4.4.2 and then in section 7.1.3, accepts this knowledge
asymmetry as a feature of a technology-intensive regulatory environment. It then seeks
to orchestrate a process producing the regulatory instrument as a result of the
interactions of more than one privileged regulatory actor, i.e. the state or any other
formal regulator.
Black emphasizes the fact that regulation is not merely fragmented but also constructed
(1997; 2001b; 2002b). This is a particular important aspect of her work since it is
possibly also the key aspect in Lessig’s work in relation to regulation [e.g. (Lessig,
1989; 1993; 1995b; 1995c; 1995d; 1995e; 1996b; 1996c; 1996-1997; 1997c)]: the latter
emphasizes the constructed nature of the concepts upon which regulation is founded. He
also invests considerable effort in illustrating both the way in which the meaning of a
regulatory instrument, such as the law, is constructed and -most importantly- what is the
constructing capacity of different regulatory modalities.
Black is greatly influenced by autopoietic theory and the work of Teubner [e.g.
(Teubner, 2005) or (Teubner and Bankowski, 1993)] in particular, though she also
makes references to Callon’s sociology of translation (1986), new-institutional theory
(Powell and DiMaggio, 1991) which forms the intellectual background of much of
Lessig’s early work on the regulation of social meaning (Lessig, 1995c; 1995d; 1996b).
Construction, whether of social meaning or of “imbroglios” of humans and non-humans
(Latour, 2005), meaning and regulation is at the center of Lessig’s approach to the
regulatory phenomenon. It is the way in which such constructions take place, who may,
who does actually participate to such process and who is to be affected by such
regulatory results that are the fundamental questions asked by Lessig. Furthermore, in
this thesis the Copyright crisis (section 2.2) is also presented as a problem of
construction costs (sections 3.6 and 7.1.1.) and the ways in which such constructions
may be instrumented in the most cost efficient fashion (sections 7.2.1. to 7.2.5).
The third aspect of regulation that Black highlights, i.e. the fragmentation of the
exercise of power and control flows naturally from the aforementioned points. Black
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acknowledges more than one sources of regulatory power, the state being one only
among many and not necessarily the most important in different contexts. This is also a
key element of Lessig’s approach to the regulatory phenomenon. The model of the four
modalities of regulation essentially echoes an understanding of the multi-source nature
of the contemporary regulatory environment. Greatly influenced by Ellickson’s work
[e.g. (Ellickson, Rose and Ackerman, 1995; 2002)], Lessig has started from problems of
meaning construction and community norm building to gradually move to higher level
regulatory problems that involve technology, markets, law and social norms. However,
the issue of the norm creation by a certain community or community of practice is at the
core of both Lessig’s academic [e.g. in (Lessig, 1996e)] and activist work [see e.g.
(Lessig, 2005f; 2005h)]. We explore the idea of formal vs. non-formal regulation in
sections 6.4.4 and 6.5 and we have already seen in section 3.6 the problems caused by
the tension between formal, state derived regulation and native regulatory forms
contained in different utilitarian artifacts facilitating daily human interaction.
The fourth aspect of a decentred understanding of regulation has to do with the
autonomy of the actors in the sense of their behavior not being seen as a constant but
rather as a perpetually changing variable, the regulation not really being able to remain
static. The work of Grabosky on counterproductive regulation (1995) is indicative of his
understanding of the regulatory phenomenon as something both internally complex and
something targeting a very complicated and constantly changing system. In Lessig’s
work the ever-changing concept of the context in relation to the regulatory actor is very
intense particularly in the segment of his work related to social meaning [e.g. (Lessig,
1995c; 1995d; 1996b)]. It is also the basis for Lesssig’s fundamental question which
relates to the way in which the regulator may respond to change (sections 4.1 to 4.1.4).
In Chapter three we have seen how such a problem has led the regulator in the case of
Copyright to move to more flexible regulatory forms, with shorter and more
individually plastic regulatory instruments (section 3.1). This fourth aspect of decentred
regulation adds to the overall issue of complexity that was initially mentioned and gives
a strong indication of why the regulatory intervention should be one that acknowledges
existing regulatory forms and tries to cultivate the ones that are closer to its regulatory
objectives (see e.g. (Brownsword, 2006) and his references to situational regulation]. It
also indicates why the CAC type of regulation is impossible in environments both of
great complexity and volatility.
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The complexity of interactions and interdependencies in the process of regulation that is
characterized by Black as the fifth aspect of the decentered approach to regulation is
also found in Lessig’s regulatory ontology. Black relates the image of regulation as “a
two-way, or three- or four-way process, between all those involved in the regulatory
process, and particularly between the regulator and the regulatee in the process of
regulation” (Black, 2001b p.109), (Black, 1998a) to the work of Offe and Keane (1984),
and Hancher and Moran (1989). Offe’s model of regulation being actually “co-
produced” by a variety of actors directly relates to Lessig’s idea of indirection, that is, a
regulatory result being achieved through the intervention of more than one modalities,
which are all aiming at the behavior of the regulatee. Accordingly, the “regulatory
space” offered by Hancher and Moran brings about the idea of regulation being
produced not necessarily through direct regulation that appears as such to the regulated
subject but rather as the outcome of a configuration of the environment of the regulatee
in such a way so that the control of her behavior is actually achieved. This idea of
regulation as “webs of influence” (Rhodes, 1995; 1997; Black, 2001b) can be clearly
related to the term “architecture” or “nature” used by Lessig (1998d; 1998c; 1999f) to
originally describe technology as one of the four modalities of regulation that appears as
a background that though invisible it is the one that frames and organizes behavior.
This aspect of Lessig’s work may also be associated, though not identified, with the idea
of “situational crime prevention” as expressed in the work of Von Hirsh, Garland and
Wakefield (2000) and explicitly linked to Lessig’s work (1998d; 1999f) by Brownsword
(2005; 2006). The situational approach advocates a crime prevention approach based on
“social order as a problem of system integration” (Von Hirsch, Garland and Wakefield,
2000 p. 183). The crux of such an approach is that the environment within which human
action is placed is configured in such a way that dissidence is very unlikely to occur
even as a possibility. Brownsword (2005 p. 12) quotes Garland on this issue:
“The criminologies of everyday life thus offer an approach to social order that is,
for the most part, amoral and technological” (Von Hirsch, Garland and
Wakefield, 2000 p. 183)
This approach emphasizes the importance of technology in constructing such regulatory
environments but also emphasizes the integrated to human activity nature of such
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regulation. In section 7.1.2 we describe such regulation as native in the sense that it does
not disrupt but rather supports the daily activities of the regulated subject and thus has a
very low enforcement cost.
Another facet of the construction-cultivation (for the use of the term in the CC case see
section 7.2) of a regulatory environment rather than a specific regulatory instrument is
the eradication of the private/ public distinction in relation to the source of the
regulatory phenomenon. This is described by Black as the sixth aspect of a decentred
understanding of regulation (Black, 2001b p. 110). Such an approach is primarily seen
in the increasing mobilization and use of private institutions ranging from organizations
to legal instruments like licences in order to achieve a certain regulatory objective.
Black quotes the work of Streeck and Schmitter in relation to “private interest
governments” (1985) as an example of how the analytical distinction between private
and public is of limited utility in a modern regulatory environment. In accordance, to the
work of Ellickson on community based regulation [e.g. (Ellickson, Rose and Ackerman,
1995; 2002)] or Rhodes’ work (1995; 1997) on governance, Black refers to the
phenomenon of private organizations increasingly creating their constantly expanding
regulatory domains that often interface or interrelate with governmental regulation.
We have seen in Chapter Three the phenomenon of privatization of Copyright related
regulation as a constant trend in environments where digital technologies are in place.
More specifically, we have seen the use both of private legal instruments, such as End
Use Licence Agreements (section 3.1), in the formation of the regulatory content of
contemporary Copyright regulation and the use of privately build technologies, such as
Technical Protection Measures, in order to control in a more appropriate fashion a
context that is rapidly changing as a result of technological advancement.
The rise of private regimes of regulation in the area of Copyright has been raised by
various authors, not least among them Elkin-Koren [e.g. in (Elkin-Koren, 1997; 1998)],
Littman [e.g. in (Litman, 1994; Littman, 1998)], Boyle (1996) ] and Benkler [e.g. in
(Benkler, 1998; 2000; 2006)] whose arguments were provided in more detail in chapter
three (sections 3.2 to 3.5) . In regulatory theory we have also recently seen a series of
papers emphasizing the role of Non Governmental or private Organizations in the
production and management of regulation [e.g. (Perez, 2002; Hutter, 2006a; 2006b;
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Hutter and O'Mahony, 2004; Lezaun and Soneryd, 2006; Tully, 2004; Scott, 2002;
2004b)].
What needs to be noted in this section is that while regulatory theory emphasizes the
importance of such institutions in the regulatory production process and focuses on
institutions in the level of the organization, the Copyright literature is more critical to
any withdrawal from public regulation in favor of private regulatory schemes and
focuses more on private regulatory instruments such as technological measures and End
User Licence Agreements [see e.g. (Benkler, 2000; Elkin-Koren, 1998; Boyle, 2003c;
2004)]. In order to appreciate where Lessig’s work is positioned in relation to these two
strands of literature, it is important to relate his work to the way in which both social
meaning and technology- based forms of regulation are constructed, at which point they
become background to the operation of daily human activities and which are the
implications of such a transition.
Lessig in several of his writings places social meaning and technology on the same level
of operation: the “structures of understanding”, the “formative context”, the
“architecture” are all constructions, that nevertheless may become at a certain time and
through a series of interaction “non-contestable” and gradually invisible. We have seen
in section 4.1.4 that the most powerful moment in the association construction is when
such associations become invisible. In the case of technology this is echoed in Lessig’s
work in the reluctant though revealing use of the term “nature” and then “architecture”
to describe technology-based regulations (Lessig, 1998d; 1999f). As Lessig notes
(1989), each set of associations carries with it the pedigree of its creation and as such
the strength of their cohesion (see also section 4.4). When technology or meaning
associations become part of the “nature” or the non-contested background, they are at
the peak of their regulatory capacity.
This is also expressed in Boyle’s understanding of the way in which regulation operates
in cyberspace as quoted by Brownsword (2005 p. 17):
“The attraction of technical solutions is that they apparently elide the question of
power –both private and public- in the first place. The technology appears to be
‘just the ways things are’; its origins are concealed, whether those origins lie in
state-sponsored scheme or market-structured order, solutions are less
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contentious; we think of legal regime as coercing, and a technological regime
merely shaping – or actively facilitating our choices” (Boyle, 1997c p. 205)
This is a particularly important moment in our effort to position Lessig’s work within
the broader regulation literature as it provides us with three of its most distinguishing
features: First, that Lessig is interested in a particular type of regulation that not merely
transcends the classic state driven CAC regulatory model, but also becomes part of an
uncontested background. Second, the way of approaching the regulatory phenomenon
requires a higher level description that would applicable both to a CAC and a post-
regulatory or decentered model and this may be found in a language or meaning driven
approach. Third, this new way of understanding regulation raises primarily questions
related to its legitimization and such questions inevitably require an investigation of the
ways in which regulation is build and involves questions of representation of the
regulatees, humans or non-humans.
We have already provided an overview of Black’s understanding of the transition from
a CAC to a decentered regulatory model. Lessig’s approach is very close to Black’s
understanding of regulation, though it is his work on Code as a form of regulation
[particularly (Lessig, 1998c; 1999f)] rather than his work on meaning [e.g. (Lessig,
1989; 1995c)] that is most often quoted by authors like Scott (2001; 2004a; 2004b),
Baldwin (2005; 2006), Black (2001b; 2002a; 2002b) or Brownsword (2005; 2006). We
have also seen that such understanding of technology or architecture as a background
form of regulation is very close to a “situational” approach to regulation, that is, a form
of regulation that does not leave the discretion to follow the rule or not to the regulated
subject but is rather self-executed or self-enforced.
Lessig emphasizes three of the facets of such a regulatory environment: first, that
technology has a greater degree of immediacy compared to traditional Law-based forms
of regulation. Second, that its strength does not derive from the fact that it cannot be
opposed, but rather from the fact that it is not even considered by the regulated subject
as a form of regulation but rather as part of the context. This is a point that is also seen
in the work of Boyle (1997c) or Brownsword (2005). Third, technology-based
regulatory forms do not lie in isolation from the rest of the regulatory forms, particularly
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the ones deriving from the state; they operate in conjunction in order to achieve the
desired regulatory result with greater force.
Similar to the concept of “architecture”, “nature”, “technology” or “situated regulation”
is what Scott refers to as the metaphor of the “regulatory space” (Scott, 2001 p. 329):
“The chief idea of the regulatory space metaphor is that resources relevant to
holding of regulatory power and exercising of capacities are dispersed or
fragmented. These resources are not restricted to formal, state authority derived
from legislation or contracts, but also include information, wealth and
organisational capacities. The possession of these resources is fragmented
among state bodies, and between state and nonstate bodies. The combination of
information and organisational capacities may give to a regulated firm
considerable informal authority, which is important in the outcome even of
formal rule formation or rule enforcement processes. Put another way, capacities
derived from possession of key resources are not necessarily exercised
hierarchically within the regulatory space, regulator over regulatee. We
recognise the presence within the space not just of regulators and regulatees, but
of other interested organisations, state and nonstate, possessing resources to a
variable degree. Relations can be characterised as complex, dynamic and
horizontal, involving negotiated interdependence. This re-conceptualisation of
regulatory processes is important in understanding the limits of law within
regulation.”
As Scott indicates, the concept of “regulatory space” is borrowed by the field of social
and political science and particularly from the work of Hancher and Moran (1989) and
is very close to Black’s notion of decentered regulation (2000; 2001a; 2001b; 2002a;
2002b). The indirection concept that we have seen in Lessig’s work finds in the case of
the “regulatory space” its counterpart in the concept of heterarchies instead of
hierarchies: this multi-source regulation is not dictated by an overall “big” meta-
regulator, such as a constitution; or it is extremely difficult to be regulated by such an
institution because of the different and diverse nature of the regulation producing
institutions that are of such a character that they evade the traditional legal hierarchies.
This is the problem that Lessig has originally identified in his work on the regulation of
social meaning emphasizing that U.S. constitutional law is designed to control the text
of the law whereas regulation is increasingly effected trough the manipulation of the
legal context (Lessig, 1995c; 1996b). Lessig then tried to analyze this context using the
construct of the four modalities of regulation (1998a; 1998d; 1999f), whereas, in
regulatory theory there have been different efforts to produce a model for analyzing this
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regulatory space, with the model of Murray and Scott (2002) based on cybernetics being
the closest one to both streams of literature.
Special reference needs to be made to another term that may be related to “regulatory
space” and that is Scot’s concept of the “post-regulatory state” (Scott, 2004a). The
notion of the “post-regulatory state” is very close to the idea of decentered regulation
and its primary contribution relates to the emphasis it places on viewing the state not as
the sole locus of regulatory production. This is the same assumption found in Lessig’s
work in relation to the dilution of the state’s ability to intervene in the formation of the
regulatory landscape, though from a different perspective. Scott examines the evolution
of the regulatory phenomenon as one related to the gradual re-conceptualization of the
role of the state from one providing a particular set of services in the case of the
“welfare state” to one regulating the provision of such services in the case of the
“regulatory state” to finally one being not the sole locus of regulation in the case of the
“post-regulatory state”. Similarly to Lessig, Scott concludes that the role of the State is
not diminished but rather transformed and in the era of governance becomes one of a
Meta-Regulator rather than one of regulator. Following the model of Rose’s (2000) and
Parker’s (2002 p. 297) Meta-regulator and influenced by Foucault’s work on
governmentality (1991), Scott is envisaging a new role for the state as the meta-
regulator in a complex ecology of regulators of different levels and kinds:
“[The] post-regulatory state is a state of mind which seeks to test the
assumptions that states are the main loci of control over social and economic life
or that they ought to have such a position and role. In the age of governance
regulatory control is perceived as diffused through society with less emphasis on
the sovereign state. This preliminary investigation of the legal dimension to the
postregulatory state is a long way from asserting the unimportance of law to
contemporary regulation. At a descriptive level the analysis offers a wider array
of norm-types and control mechanisms relevant to understanding regulatory
governance than is common in functionalist analyses of the regulatory state.
Normatively the analysis is suggestive of alternative functions for law to
asserting command. In particular it emphasises the role of law in structuring or
proceduralising both state and non-state activities which are premised upon
alternative instruments and/or institutions of control. But there are both
theoretical and empirical challenges to be addressed.” (Scott, 2004a p. 20)
Such an approach is very similar to the problem that Lessig poses in the New Chicago
School in relation to the role of the constitution in Cyberspace as a meta-regulator. It
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also relates to the transcendence of national jurisdictions and traditional sources of
regulation and what it entails for the state’s role (Lessig, 1996d; 1996e; 1997a; 1998d).
In this series of papers Lessig envisages a research program of what he calls “post-
constitutionalism” the outline of which is presented in a form of a series of questions in
the final part of his New Chicago School paper. As we have seen in sections 4.4 this
quest will gradually lead Lessig to the identification of a model for regulation building
that is based on a discourse- and process- oriented approach. Such approach is mostly
expressed in the case of FLOSS development as an open regulation building
development exercise. In that sense Lessig’s model resembles both the
“proceduralization” regulatory model (Black, 2000; 2001a) and the “discourse analysis”
model described in Black’s (2002a) “regulatory conservations”.
Another more recent paper by Black (2007), “Tensions in the Regulatory State” is also
important for appreciating yet another aspect of the regulatory phenomenon appearing
in the case of Copyright as presented in chapter three and related to Lessig’s effort to
describe a meta-regulator for cyberspace. Black in Tensions refers to the contrast
between smart and better regulation. Similarly to the papers written by Baldwin two
years earlier (2005; 2006), Black seeks to explore how the tendency for more
decentralized and multiple forms of regulation advocated by the “smart” regulation
model (Gunningham, Grabosky and Sinclair, 1998) is related to the criteria for “better”
regulation where a more consolidated regulatory model for the meta-regulator is
advocated. Black examines the two trends in regulation building to highlight how they
occur on different levels:
“[W]hilst there may be institutional consolidation in one part of the regime, the
regime as a whole may still display characteristics of polycentricity. Even
though parts of a regulatory regime may look at the institutional level to have
become more "centred", within that regime different actors can be enrolled
within that regime in a way that a focus on formal institutional structures
overlooks.” (Black, 2007 p. 66)
In the case of Copyright a similar move is being experienced as on the one hand we
have the emergence of high-level regulatory structures in the form of international
treaties, such as the WIPO 1995 Internet treaties and regional instruments such as the
EU Copyright Directive, while on the other hand we see that the implementation of the
national regulatory structures occurs in the level of standardized EULAs that are micro
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implemented (see sections 3.1 and 3.6). In such an environment, the individualities of
which are also acknowledged by Lessig [e.g. in (Lessig, 1996a; 1998d; 2003c)] the
issue of the development of a meta-regulator or the post-constitutional entity becomes
an issue that requires centralized effort, state intervention or at least interfacing with the
existing legal machinery but at the same time a decentered and self-regulatory or
grounded approach. This is closely linked to the question of whether Lessig is an
advocate of a state or private driven regulation that we have posed at the outset of
chapter four (section 4.1) and which has led us to the conclusion that Lessig is
pragmatically oriented towards a private regulation with public values (section 4.5).
In order to explore the constituent parts of such a regulatory model as well as the
process that could gradually lead to the development of such a meta-regulator, we need
to return to the basics of the regulatory phenomenon. Hood, Rothstein and Baldwin
(2001 p. 23-27) have developed an abstraction to describe any form of control that is
applicable both to CAC and decentered regulatory models. This abstraction that forms
the main heuristic for Murray and Scott (2002) to advance Lessig’s four modalities
regulatory model, is repeated by Scott in his “post-regulatory state” paper:
“Underlying the scepticism about the regulatory state the various analyses have
in common an attempt to grapple with the problem of control. At the highest
level of abstraction any system of control consists of (1) some kind of standard,
goal, or set of values against which perceptions of what is happening within the
environment to be controlled are compared through (2) some mechanism of
monitoring or feedback which in turn triggers (3) some form of action which
attempts to align the controlled variables, as they are perceived by the
monitoring component with the goal component. For classical regulation the
goal component is represented typically by some legal rule or standard, the
feedback component by monitoring by a regulatory agency, government
department or self-regulatory organisation and the realignment component by
the application of sanctions for breach of standards.” (Scott, 2004a p. 3)
The existence of multiple such systems within a particular context creates the problem
of how to coordinate and control not merely or directly the behavior of the human
regulatee but rather the operation of different control systems. Besides the several post-
or meta- regulatory systems presented in the previous paragraphs, Black offers an
additional perspective of the characteristics that such meta-regulatory should have by
identifying the risk-based regulatory approaches (Black, 2005; 2007).
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Two aspects of Black’s work on risk-based regulation are of relevance to this thesis: one
having to do with the level on which risk is positioned in relation to the regulatory
phenomenon; and a second one related to the impact of risk-based approaches on the
problem of regulatory accountability and legitimization. Black identifies risk-based
regulation not merely as regulation that aims at the reduction of risks rising from
particular conduct, such as environmental risks, but also as the assessment of regulation
in terms of its failure risks (Black, 2007 p. 67). Black’s approach that is based on the
regulatory approach found in the Hampton report (2005), assumes that through a
continuous evaluation of the regulatory intervention, the regulatory landscape is to be
constantly controlled. As Black (2007) notes, such an approach raises the issue of
accountability of the regulator and the legitimization of the meta-regulatory control.
Though Lessig is not interested in issues of regulatory assessment and the issue of the
risk from organizational failure of the regulatory authorities does not appear in Lessig’s
work, there is an overall sentiment that the current Copyright Laws systematically fail to
address the needs of a new class of creators that are under-represented in the relevant
regulatory instruments (sections 3.2 to 3.6 and 7.1.1). This is particularly clear in
Lessig’s most recent work on Creative Commons (Lessig, 2004b; 2004c), but it also
appears in his work on regulation of cyberspace (Lessig, 1999d; 1999f; 2001b). The
Copyright system seems to be suffering from what we have described in sections 3.6
and 7.1.1 as regulatory distantiation: the mechanisms of accountability and
legitimization are not really in place and since there is no access to the means of
regulatory production, there is a gap between the creative practices of new classes of
creators and the content of the existing regulatory forms (national laws and international
treaties).
As we have seen in sections 3.3 to 3.5 Lessig, Boyle and Benkler have all identified the
political importance of the IPR regulatory framework for the Information Society and
the problems stemming out of the opacity of a multi-source - multilevel regulatory
environment. Lessig’s effort to construct a post-constitutional model for the meta-
regulation of cyberspace aims at identifying a process which could support the
production of a regulatory system allowing the more accurate and balanced
representation of different actors in the IPR regulatory ecosystem (Lessig, 1996e). In
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this effort, Lessig places particular emphasis on language or semiotic perspective of the
production of meaning as well as on different forms of regulation, particularly
technological ones. We have described this trajectory of Lessig’s work in detail in
chapter four to conclude (a) that a major task of any regulator is to intervene to the
process of collective or social meaning production (b) that technology as a regulatory
modality in order to achieve the desired legitimization requires to be collectively
developed and to be potentially collectively reformed as well and (c) that the archetype
for such a development of a regulatory form is the FLOSS model or the mode of
working of the IETF (see also section 4.5).
It is apparent that particularly in Lessig’s meaning- and regulation- related work there is
a strong inclination to transfer the focus of the debate to the process in which regulation
is produced rather than the actual content of the relevant regulations. Lessig asks the
question of how regulation should respond to contextual change only to find that such a
response should be the result of the kind of mandate the regulator obtains from society.
Lessig’s original question is thus rephrased in a new form: in a multi-source regulatory
environment with no single meta-regulator, how should we establish a process that will
allow such representation to take place and how will we ensure that this regulation
remains collectively plastic. Lessig’s final answer is that the FLOSS model of software
development represents such an attempt for a process that allows participation to the
formation of the regulatory modality of technology (sections 4.4.1 to 4.4.3).
This re-conceptualization of the problems appearing in a multi-source and embedded to
daily social practices regulatory environment as problems of participation and
legitimization is found in Lessig’s meaning and regulation work in the 1990s but makes
an even clearer appearance in a series of two more recent papers by Brownsword
(Brownsword, 2005; 2006) referring explicitly to the former’s work. Brownsword poses
as the most important aspect of a technology-based regulation the lack of the ability of
the regulatee to make a conscious choice to obey or violate its regulatory content. For
Brownsword, such form of regulation that –in Lessig’s terminology- has a maximum
degree of immediacy and individual plasticity (Lessig, 1999f) is problematic for a
democratic state. This seems to be one of the problems also originally identified by
Lessig in Code (Lessig, 1999f) and Zones (Lessig, 1999b) and is closely related to the
problem of distantiation identified at the end of chapter three.
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Similar are the concerns appearing in Black’s work and particularly her Proceduralising
Regulation (2000; 2001a) and Regulatory Conversation (2002a) papers. In these papers,
though having a different starting point from Lessig, Black draws similar conclusions.
Strongly influenced by Teubner’s autopoietic approach (Teubner, 1997; Teubner and
Bankowski, 1993; Teubner and Febbrajo, 1992) (Teubner, 1983; 1987) Black provides a
description of what in this thesis is called the distantiation phenomenon, as a problem
related to the failure of law to follow or translate practices from different areas or
“systems” of social action:
“The implications for regulation are that the political system may attempt to use
law, and law may in turn try to act on other social systems, but both attempts
will fail to the extent that the norms that they try to impose are outside the paths
and limits of the self-reproduction of those systems they try to act upon (i.e. to
the extent that they go beyond the 'structural coupling' of those systems). This
failure results for Teubner not only in a crisis of effectiveness for the welfare
state, but in a crisis of legitimacy for law. For if law's legitimacy lies in its
successful implementation of political goals, then legitimacy will be lost as
implementation fails.” (Black, 2000 p. 4)
Black then proceeds in presenting the solution advocated by Teubner and the one being
most related to Lessig’s approach for a post-constitutional regulatory framework. The
idea is not to engineer or construct regulation but rather, as we will also see later in this
chapter and in section 7.2, to advocate an approach of regulatory cultivation:
“In Teubner's analysis the only way to avoid regulatory failure is to move
forward to adopt a new legal paradigm. It is to move from the legal paradigm of
material or regulatory law to that of procedural law. Procedural law is the
adoption of indirect mechanisms for regulating social behaviour, the regulation
of organisation and procedures, the redistribution of power and competences. It
is the replacement of state control with effective internal control; the creation of
structural conditions for an 'organisational conscience' that would reflect the
balance between the system's relation with other systems and its relationship
with itself. Procedural law is a shift to more indirect and abstract guidance
mechanisms, but ones which are, like material law, purposive in their
orientation. It is the recognition of a heterarchical and not hierarchical
relationship between politics, law, and other social systems; its central
characteristic is decentral, context regulation. It attempts to affect (irritate) the
system in such a way that it moves from its current state to that which is
required. It is 'social gardening' rather than 'social engineering'.” [(Black, 2000
p. 5) quoting Teubner (Teubner, 1992)]
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Black also very close to Lessig’s four regulatory modalities and indirection model
appearing in the New Chicago School paper (Lessig, 1998d) and influenced by
autopoiesis as appearing in Dunshire’s work (1996) presents a “decentered” regulatory
strategy as one based (a) on taking advantage of existing regulatory mechanisms and
there interaction (b) on intervening only indirectly and often letting the inertia of the
system creatively work in a beneficial to the regulator way:
“This [decentered] strategy can take a number of forms. It can be the use of
'dominium', the economic resources available to the state in the form of the
imposition of taxes or the award of subsidies or incentives, or in the firm, the
structuring of salaries. It can involve the use of neo-corporate strategies, of the
deployment of the governance resources of associations and corporations for the
purposes of achieving state ends. It can be manifested in strategies of balancing
or 'collibration': manipulating the conflicts of others in order to achieve the
outcome desired--loading the balance, tweaking the springs, to alter the
conditions of engagement between actors. It can take the form of negotiations
between the state and other groups. Or it can take the form of reflexive legal
strategies--the use of law not to impose substantive ends but to structure decision
processes to ensure that the result achieved is acceptable.” (Black, 2000 p. 4)
Black in the two parts of the Proceduralising Regulation papers (Black, 2000; 2001a) is
concerned with the identification of the legitimizing conditions for the genesis of
regulation and in that sense it resembles Lessig’s endeavor to legitimize regulatory
content in the face of contextual change. In Black’s model similarly to Lessig’s FLOSS
conceptualization, the idea is that the regulatory power is positioned at the ends of the
network, that each regulatee may act as a “self-regulator” (Black, 2000 p. 11) and that
the role of the regulator should be one of a “mediator”:
“mediating between deliberants, mapping the discourse positions, regulating and
facilitating their decision-making process, but leaving to them the ultimate
decision of whether or not to make a decision, and if so what decision to make.”
(Black, 2001a p. 2)
Black views the process of regulatory building as one of discourse development and
suggests discourse analysis as the preferred tool of analysis for its study (Black, 2002a).
Black understands regulation “in large part [as] a communicative process.
Communications between all those involved in the regulatory process concerning that
regulatory system are an important part of their operation. Understanding such
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regulatory conversations is thus central to understanding the ‘inner life’ of that process”
(Black, 2002a p. 164).
Black in her understanding of regulation as a communicative process seems to be
influenced by New Institutional organizational analysis (Powell and DiMaggio, 1991)
as much as by Habermas (1987a; 1987b), an influence which is also strong in Lessig’s
work related to meaning and regulation (Lessig, 1989; 1993; 1995c; 1995d; 1996b).
In Regulatory Conversations Black explores five contentions that are closely related to
Lessig’s work on meaning and regulation and are also strongly present in the Creative
Commons design:
“First, as to meaning and coordination: that the meaning of language is in its use,
that use and therefore meaning will vary with context and with genre, and that
the development of shared linguistic practices entails coordination and forms the
basics of social action.” (Black, 2002a p. 165)
This is an argument that appears in great extent in Lessig’s series of meaning papers
(Lessig, 1989; 1993; 1995a; 1995b; 1995c; 1995d; 1996b; 1996c; 1997c; 1998b; 1998c;
1999b). All three aspects of this argument set the basics of the interaction between
meaning and regulation appearing in Lessig’s work. It is the changes in context that are
the main focus of Lessig’s work as well as it is the assumption that this formative
context frames behavior and that drives his interest in exploring the ways in which it
may be regulated.
The second contention explored by Black does not appear in Lessig’s theoretical work
with the same strength or clarity but operates as a background concept in his Creative
Commons work (Lessig, 2003c) and particularly his series of newsletters (Lessig,
2005a; 2005b; 2005c; 2005d; 2005e; 2005f; 2005g; 2005h; 2005i; 2005j; 2005k; 2005l).
Black explores the construction of identities, whereas the Creative Commons project
constitutes a conscious effort to construct identities and in particular to change the
meaning of sharing-reusing and remixing from an act of piracy to one of creativity: the
“pirates” of the existing Copyright system are the “creators” of the Creative Commons
system (see sections 7.1 to 7.3). Black explains at the outset of Regulatory
Conversations her understanding of the identity construction process:
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“Secondly, as the construction of identities: that communicative interaction is
representative and in particular produces identities which in turn affect social
action.” (Black, 2002a p. 165)
The third and fourth contention explored by Black relate to the framing capacities of
language and its power implications. Lessig initially refers to these issues in his
meaning papers. In the Regulation of Social Meaning (Lessig, 1995c) and Social
Meaning and Social Norms (Lessig, 1996b), he is particularly interested in the ways in
which orthodoxies may be both created and operate as another source of control much
stronger than legal regulation. As we have seen in section 4.1.4, Lessig identifies
specific mechanisms of producing such orthodoxies but is also interested in the ways in
which social values that have been embedded in “texts”, in the broader sense of the
term, may be retained or altered in the face of changing circumstances. Black’s
description of the element of power in language is as follows:
“Thirdly, as to the relationship of language, thought, and knowledge: that
language frames thought, and produces and reproduced knowledge. The fourth,
closely related, contention is that language is ultimately related to power: that it
is marked by the values of social groups, that it encodes perspectives and
judgments, and can instantiate certain perspectives or orthodoxies” (Black,
2002a p. 165)
The last contention that Black explores is that of the contestability and potential
changeability of meaning, power, thought and knowledge:
“The final contention considered is that meaning, thought knowledge, and power
are contestable and contested; meaning and thus thought, knowledge and power,
is never fixed ad so is open to contestation and change.” (Black, 2002a p. 165)
This constitutes the starting point in Lessig’s work in the late 1980s – early 1990s: how
should regulatory instruments of meta-level, such as the U.S. constitution, respond to
change (Lessig, 1989; 1993). Lessig moreover seeks to explore how change may be
provoked and how regulation may be used to change contextual structures in order to
affect social action. However, Lessig and Black’s positions are not exactly coinciding.
Lessig assumes that though meaning or any similar structure (such as technology from a
material semiotics perspective) may be potentially always susceptible to change, this
however, does not necessarily entail that the costs of changing any meaning structure
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are always the same. On the contrary social meaning may be in certain contexts non-
contested in the sense that the costs of changing meaning are such that make such
change impossible. The problem that Lessig explores is how such change may be
effected and which are the mechanisms to intervene in a particular setting so that these
costs are altered and consequently meaning is changed.
In that sense, Lessig’s research constitutes also an attempt to explore how the
“regulation as gardening” (Black, 2001a) model should be implemented. As we will see
in section 7.2, Lessig sketches and implements with the CC project a two tier model for
the way in which regulation may be developed: a construction model based on
principles of meaning construction (sections 4.1.4, 6.1-6.2 and 7.2.1) and a cultivation
model (sections 4.4, 6.4, 7.2.2.) inspired by the communicative process occurring in a
FLOSS development setting. Lessig’s model though related to many of the other
regulatory models presented in this section and though very close to Black’s regulatory
conceptualizations, it differs in the sense that it addresses a nexus of regulatory
relationships that appear mainly at the contractual level and are interfaced to the
international and regional treaties regime through national legislations. In that sense it is
closer to the regulatory models presented by Brousseau (2005) though again Lessig is
explicitly interested in the regulation of individuals rather than legal persons which
tends to be the focus of much of the regulatory literature.
Lessig’s work both in its theoretical and activist dimensions, is very much concerned
with problems of legitimization, representation and translation. All three issues are
found in the work of Black [e.g. (Black, 2002a; 2002b)] or Scott (2001; 2004a) but
again the latter are more interested in the ways such issues are addressed by a more
classic, state driven regulator, whereas in Lessig’s work these issues are posed initially
in the framework of the U.S. constitutional law [e.g. in (Lessig, 1995a; 1995d)] and
later as a broader issue related to new forms of regulation, such as technology, that do
not necessarily reside with a state regulator [e.g. (Lessig, 1996d; 1997d; 1999g)].
Finally, though the representation of different technologies in a regulatory instrument is
important as a background problem in Lessig’s regulation and technology papers, and is
expressed mainly through the mechanism of indirection, there is no explicit reference to
it in his theoretical work. On the contrary, we have a comprehensive treatment of the
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issue from a regulatory perspective by Teubner (Teubner, 2005) and a more incidental
one by Black when referring to the Translation process (Black, 2001a; 2002a) mainly
influenced by Callon’s work (1986). Interestingly, as we will see in the treatment of the
Creative Commons case (chapters six and seven), the issue of representation of hybrids
of humans and non-humans within the CC licences will explicitly appear and Lessig
will take a position in relation to the adoption of v.3.0 of the CC licences (particularly in
sections 6.4.3 and 7.2.2).
4.5.2 Understanding Lessig’s regulatory approach with respect to
FLOSS development
We have already seen (sections 4.4.1 to 4.4.2) how Lessig has been particularly
influenced by the FLOSS model in his work and how he has used it primarily in two
ways: first, as an alternative to the mainstream Copyright model for the production
initially of software and subsequently content (with the CC project); and second, as a
model of governance for architecture-based regulation on the Internet. It is the latter use
of the FLOSS model as a meta-regulatory model that has been of most interest to this
thesis.
Lessig’s adoption of the FLOSS model in relation to regulation occurs in two stages:
first, by acknowledging the regulatory dimension of software on the Internet and
identifying the lack of collective plasticity in its creation, Lessig seeks for a
development model that would have a greater degree of collective plasticity (Lessig,
1999f). He views FLOSS as such a solution and hence advocates such model for the
development of technology based regulatory forms. Second, having identified a pattern
away from collective and towards individual plasticity in the area of classic legal
regulation as well as a trend of regulation to operate in multiple layers through
indirection (Lessig, 1998d; 1999g), Lessig explores how the FLOSS model may be
applied in regulatory modalities other than software.
To sum up the two moves in Lessig’s work, we see in the first move an understanding
of software as regulation and, in the second, an understanding of regulation as software.
To enhance our understanding of Lessig’s work and following the review of the
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regulatory literature, we need to place such conceptualization of technology and
regulation within the relevant FLOSS literature. In this effort we will make references
not merely to Lessig’s academic work but also to his CC project and his formal
statements regarding its progress and evolution (particularly as described in chapters six
and seven). The objective is to view which of the features of regulation as approached in
Lessig’s work related to three streams of literature: FLOSS, Standards and Information
Infrastructure literature.
Though the “Free Software Manifesto” (Raymond, 2001) or “The Open Source
Definition” (Perens, 2006) have dominated the understanding of FLOSS at least in the
mid 1990s, three elements of FLOSS presented by O’Reilly (O'Reilly, 2006) referring
to the FLOSS phenomenon are more likely to provide a simple and coherent set of
features that seem to characterize software development and has influenced Lessig in
his approach to the regulatory phenomenon. In a presentation of FLOSS as a
paradigmatic shift in the Kuhnian sense (Kuhn, 1962) O’Reilly identifies FLOSS as the
expression of “three deep, long term trends: (a) the commoditization of software (b)
Network-enabled collaboration and (c) software customizability (software as a service)”
O’Reilly’s paper is particularly important as it provides us with links to different parts
of this thesis. As seen in sections 6.1 and 6.2, O’Reilly has been portrayed by CC as one
of the pioneer users of the CC licences and has actually introduced one of their
variations. O’Reilly has also been involved in the Open Content movement as presented
in section 6.2. Finally, he refers both to Lessig’s work (1999f) in his paper and is
influenced by Kuhn’s work in relation to his understanding of paradigmatic shift which
to a great extent is a constructivist one, similarly to Lessig’s regulatory ontology.
In the first of the three trends that O’Reilly identifies, he is influenced by the relevant
definition by Stutz (2004b):
“The word commodity is used today to represent fodder for industrial processes:
things or substances that are found to be valuable as basic building blocks for
many different purposes. Because of their very general value, they are typically
used in large quantities and in many different ways. Commodities are always
sourced by more than one producer, and consumers may substitute one
producer's product for another's with impunity. Because commodities are
fungible in this way, they are defined by uniform quality standards to which they
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must conform. These quality standards help to avoid adulteration, and also
facilitate quick and easy valuation, which in turn fosters productivity gains.”
O’Reilly links directly the commoditization of software with standardization and the use
of communication-oriented technologies such as the Internet. As we will see later in this
section, links to the relevant literature also appear in Lessig’s work. What is important
in relation to the commoditization and subsequent standardization of software is that a
similar trend is gradually seen in the realms of licensing agreements. When Lessig
refers to the “stealing” of the idea of public licensing from the Free Software
Foundation (Lessig, 2005j), he essentially identifies the likeness of licensing as a
commodity to software as a commodity.
Of course, the two are not identical and is Lessig also not referring to a “licensing
commoditization”. On the other hand standardization of licences still remains one of the
main and outer objectives of the CC project. We illustrate this process in greater detail
in sections 6.1 to 6.4.5. Though there is no such thing as a “marketplace” in the strict
sense of the word for a public licence, the history of Open Content licences (sections 6.1
and 6.2) indicates that the CC licences had and still have to compete with a series of
other licences that perform similar roles. The process of the CC licences
standardization, described by Lessig in his first series of newsletters is similar to the one
described again by Stutz (2004a) and quoted by O’Reilly regarding software:
“It occurs through a hardening of the external shell presented by the platform
over time. As a platform succeeds in the marketplace, its APIs, UI, feature-set,
file formats, and customization interfaces ossify and become more and more
difficult to change. (They may, in fact, ossify so far as to literally harden into
hardware appliances!) The process of ossification makes successful platforms
easy targets for cloners, and cloning is what spells the beginning of the end for
platform profit margins.”
This process, similar to the “irreversibility” as presented in the work of Hanseth (1998),
is a process that we also see in the case of CC and the overall landscape of Open
Licensing, e.g. through the standardization efforts of FSF (Free Software Foundation,
2004) and the Debian group (Debian, 2006).
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It is also interesting to compare Lessig’s objective of using a standardized licence with
the effects of commoditization in the software industry. Christensen’s law of
conservation of attractive profits (Christensen, 2004) seems to be very close to Lessig’s
idea of using the standardized licences as an instrument for setting up a commons upon
which further services could be established:
“When attractive profits disappear at one stage in the value chain because a
product becomes modular and commoditized, the opportunity to earn attractive
profits with proprietary products will usually emerge at an adjacent stage.”
The same logic seems to be underlying much of the “less legal friction” rationality
(section 6.2) behind the introduction of standardized and easy to interface with
technology-based licensing schemes such as the CC licences.
A related feature of the CC licences that appears in great strength in the FLOSS
development case is that of the modularity of the licences in a way similar to the
modularity of software. The use of standardized but modular Licence Elements (Lessig,
2005b; 2005g; 2005l) also seems to be taken from FLOSS, used by Christensen to
describe the way in which innovation is possible (Christensen, 2004) (Christensen,
1997; Christensen and Raynor, 2003) and as we will see in section 6.4.1 to 6.4.4
similarly to software it plays a fundamental role in the coordination of the different
contributors. Weber (Weber, 2000) following the work of Lerner and Tirolo (2002)
views the use of a modularized architecture as a key contributor to the reduction of
complexity to the organizing of the development process and as such a response to the
issues related to software development presented by Brooks (1995).
The second basic FLOSS feature that O’Reilly identifies, the Network-Collaboration
element, is possibly the most apparent in the way in which the CC licences are
developed. This is closely related to the idea of “take law into your own hands” (Cone,
2003) campaign seen in the CC audiovisual material, the idea of the end-to-end
argument (Saltzer, Reed and Clark, 1984) so popular with Lessig’s writings also
mentioned as the concept of humility (Lessig, 2004d), the concept behind Benkler’s
Commons Based Peer Production (Benkler, 2000; 2002) or the generativity argument
originally developed by Zitrain (2006) and used by Hanseth and Nielsen (2007) in the
Information Systems standards literature.
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Interestingly, when describing the way in which FLOSS operates, O’Reilly uses the
term “architecture of participation” directly making reference to Lessig’s work
describing architecture as a modality of regulation (Lessig, 1999e; 1999f) and Kapor’s
work (2006) where the political nature of architecture is emphasized. O’Reilly quotes
Linus Tovarlds indicating that to a great extent the ability to collaborate in an e2e way is
possible only when a certain type of architecture is in place:
“’I couldn’t do what I did with Linux for Windows, even if I had the source
code. The architecture just wouldn’t support it’. Too much of the Windows
source code consists of independent, tightly coupled layers for a single
developer to drop in a replacement module.” (O'Reilly, 2006 p. 266)
Tovarlds’ point, combined with O’Reilly’s comments is of extreme importance, as we
see in sections 4.1 to 4.3, for the design of Lessig’s post-constitutional meta-regulator
on Cyberspace (Lessig, 1996d; 1996e; 1996-1997). The architecture that will allow the
open participation to the development of a regulatory instrument has to be designed in
two levels: on the one hand there needs to be the infrastructure (such as the mailing
lists) that will allow the unhindered contribution by the ends of the network (section
6.4). This is to be achieved through a system of open and public mailing lists, such as
the ones used for the development of FLOSS. On the other hand, the artifact that is to be
developed, i.e. the licences, has to be modular and standardized so that the collaboration
of an open number of developers is indeed possible. The idea is to develop a set of
licences that has a Linux-like rather than Windows-like internal structure (section 6.3).
The idea of the modularization and participation is very close to the idea of
customizability and identification of software as a service presented by O’Reilly as the
third feature of the FLOSS model. The point that O’Reilly makes relates to an
appreciation of the FLOSS outcome being more a process than a product. O’Reilly
makes reference to cases such as Google, the original Napster or Amazon to notice that
it is the participation of the user and the resulting process that matters more than a naked
end-product. This is also very much in the crux of Benkler’s argument (also using the
same examples) related to the Common Based Peer Production (Benkler, 2002) model
that constitutes an abstraction applicable beyond FLOSS in the strict licensing-based
sense. Lessig also uses a similar set of examples in his more recent two books (Lessig,
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2001b; 2004d) but it is only in his early papers we see a link to the use of such
processes for the production of regulation rather than content.
The understanding of standards as Actor-Networks [see e.g. (Latour, 1999; 2005) or
(Callon, 1986; Callon and Latour, 1992)], as hybrids of technologies, people and
process that are constantly evolving reaching stages of temporary but always potentially
contestable stability is ontologically very close to the aforementioned understanding of
FLOSS. Particularly in the work of Hanseth and Monteiro (1998), Hanseth (Hanseth
and Braa, 1998) (Hanseth, Ciborra and Braa, 2001) and Ciborra (Ciborra, 1998) we
have such conceptualizations of standards or Information Infrastructures that contributes
to the understanding of any participatory development process as something aiming
beyond the production of a stand alone artifact.
Before proceeding to a more detailed positioning of Lessig’s work within the
Information Infrastructures and Standards literature, we will briefly make a link with the
features of the FLOSS literature as presented by Von Krogh (Von Krogh and Spaeth,
2007) that may be also found in the work and activities of Lessig, particularly in relation
to the CC project.
Von Krogh and von Hippel’s (2006) three tier classification of the FLOSS literature
identifies three main streams, i.e. (a) developer motivation (b) governance, organization
and innovation process and (c) competitive dynamics. Lessig’s work is closer to the
research output provided by the second group. Besides Benkler’s work [e.g. (Benkler,
2002; 2003b; 2006)] to which we make specific reference in sections 3.3 to 3.5 and
which presents the model of Commons Based Peer Production as the primary
governance structure dealing with coordination and organization aspects of FLOSS
projects, other researchers have also dealt with different aspects of organizing of
FLOSS projects. One of the most prevalent themes has been the ability of FLOSS
projects to remain open while at the same time not being diluted through a process of
continuous “forking” (Koch and Schneider, 2002; Kogut and Metiu, 2001), that is the
breaking down of one project into other related projects.
While the issue of retaining the coherence of a FLOSS project while allowing
incremental innovation remains at the core of the FLOSS organizational literature,
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Lessig’s academic work seems to be lacking such detail of focus. Thus, while FLOSS is
presented as a model for more participatory production of software as regulation and its
capacity to innovate is emphasized in Lessig’s work [e.g. in (Lessig, 2001a)], the
question of organizational coherency remains out of his focus. What the FLOSS
literature illustrates is that in such projects participation and contribution is not evenly
distributed or structured even at the level of designing a project’s internal governance
mechanisms. Von Krogh and Spaeth (2007) identifies the role differentiation as the
main mechanism through which the reduction of the risk of forking is mitigated.
Similarly to Benkler that identifies the basic governance mechanism behind any FLOSS
project being between markets, hierarchies and communities (Benkler, 2002), Demil
and Lecocq (2006) make a similar observation and presents the FLOSS organizational
structure following a layered model. In such a model, the governance of the contributors
occurs through a layering of their decision making abilities in the sense of influencing
the direction of the core development. Crowston and Howison (2006) present this
organizational model using the metaphor of the onion. Von Krogh, Spaeth and Lakhani
(2003) follow a similar model referring to peripheral and core developers.
Lessig presents FlOSS in a rather simple way in his work. This is the result of the time
when it appears, which is mid to end 1990s, when the understanding of FLOSS projects
and their governance has been less sophisticated than ten years later. However, it is also
the result of the level and focus of Lessig’s FLOSS related work: in his cyber-regulation
papers [e.g. (Lessig, 1998a; 1999b; 1999c; 1999d; 1999f; 1999g)], Lessig has as a
departure point the political nature of architecture-technology and uses FLOSS as a
model to illustrate that it is possible to have a more participatory process in its
development (Lessig, 1999d). In addition he emphasizes that such participatory process
is necessary in order to retain the public values and legitimization we have in classic
legal regulation: if legal regulation is to be substituted with technological regulation,
then the same checks and balances have to be put in place (Lessig, 1998d). However,
when his interest shifts to the issue of non-balanced rights allocation, the interest to
FLOSS becomes more one related to its capacity to allow innovation (Lessig, 2001a).
This is the way in which Lessig’s understanding of FLOSS has been popularized in his
two latest books (Lessig, 2001b; 2004d). Finally, in the phase of the development of the
CC project the focus shifts on the question of how participation may be achieved for the
production of a legal instrument. This time the regulatory instruments is of a different
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level than legislation: while using a governance mechanism (mailing list) and internal
mechanism (standardization and modularization), the issue of organizing the production
of the regulatory instrument appears not as an explicit concern but rather as a
background issue.
Thus, this thesis comes to fill the gap between the FLOSS literature and Lessig’s
transposition of the FLOSS model in a different context. As we see in chapters six and
seven, our research attempts to identify the ways in which the development of the CC
licences is organized and the way in which the project is held together without being
constantly forked. Though this is not an anthropological study of FLOSS, it follows
Zeitlyn’s (2003) work in the sense that it attempts to trace the development of the
governance structures within the Creative Commons project and understand how
different norms are developed and contained. The focus on the interactions between
users, the patterns of participation and the ways in which innovation and stability occur
that are presented in sections 6.4.1 to 6.4.5 are all contributing to an identification of the
different internal regulations within the CC project.
Another interesting aspect of Lessig’s work and particularly the way in which the CC
project implements some of its features, is that it transfers the FLOSS model in a
different context. In that sense, it reverses the way in which the Free/ Open Licensing
and the development process operate: instead of using a Free/ Open licence in order to
support or directly govern a development process, the development process is used in
order to produce a set of Free/ Open Licences. This is not an entirely new model and as
we see in sections 4.4.1 to 4.4.3 and 6.1 to 6.5 there has been a gradual process that led
to such a result. Lessig initiated a similar effort with the collection of legal documents
for the support of the Eldred case (Lessig, 2004c) through the Open Law project (Open
Law, 2003) to then gradually move to the production of the CC licences.
Lessig’s efforts with both the Open Law and subsequently CC projects have as their
precedent the Groglaw project. The latter being a project run by Pamela Jones
essentially used FLOSS principles in order to collect legal material for the SCO v. IBM
case (Jones, 2006). In a broader sense, the FLOSS principles have been presented as a
more general production model by Benkler (2002), whereas Shah (2006) has presented
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how concepts of openness and collaboration have governed innovation in the area of
sports design.
A final aspect of Lessig’s work that resembles the literature concerning FLOSS
development has to do with the impact, theoretical tension, transparency and communal
reflexivity aspects (Von Krogh and Spaeth, 2007) of the way in which both his
academic work and the CC project develop. Lessig’s work, especially after the end of
2002 with the initiation of the Creative Commons and the gradual shift towards more
popular ways of writing [compare for example the Regulation of Social Meaning
(Lessig, 1995c) or Fidelity (Lessig, 1993) with Free Culture (Lessig, 2004d) or The
Future of Ideas (Lessig, 2001b)], has an impact that is not confined in the realms of
academia but has a visible impact on the real world. This seems to be Lessig’s own
intention as exemplified in his latest career turn to fight corruption (Lessig, 2007a), but
also in his vision to effect social change through a series of meaning construction
strategies (section 4.1.4).
This is very much like research on FLOSS that has a greater social impact than merely
being addressed to a limited academic audience. Von Krogh an Spaeth (2007) present
(2007) a series of areas on which FLOSS has an impact raising from changes in the
software industry landscape (Bonaccorsi and Rossi, 2003) to issues of digital divide
(Bokhari and Rehman, 1999) and national policy drafting (Waring and Maddocks,
2005). Lessig, however, is closer to authors like Raymond (2001), O’Reilly (2006) or
Stallman (2002) that were also involved in the entrepreneurial activity, business or
software development and through their activities rather than their theoretical work have
managed directly to influence the field. Raymond and Stallman are the closest to
Lessig’s work in the sense that their writings [e.g. (Raymond, 2001)], licences [e.g.
(Stallman, 1999)] and activist work have contributed to the formation of the FLOSS
field.
The theoretical tension aspect that appears in FLOSS literature suggesting an alternative
to mainstream innovation theories (Von Krogh and Hippel, 2003) (Schoonhoven, 2003)
is also present in Lessig’s work. The latter following Benkler (1999; 2002; 2006) and
Boyle (1996; 1997a; Boyle, 2003c) is in favor of an innovation model based on the
increase of the Public Domain or the Commons rather than the provision of incentives
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for creativity. As we have seen in sections 7.1 and 7.1.3, and following Moglen’s Law
(1997), Lessig is interested in innovation as a result of the removal of obstacles rather
than the provision of incentives. Lessig uses this kind of model particularly in his later
and more popular work for describing creativity in relation to software and content.
However, in his earlier work on meaning, he is more interested in the way in which
mechanisms supporting collective action, such as FLOSS models, may be used in order
to change meaning and consequently lead to social change.
As Von Krogh and Spaeth note (2007), FLOSS cases demonstrate the transparency
element in the cases to be studied. Transparency appears both in the sense of having
public archives for discussions in software development or public meetings for making
some critical decisions. Though Lessig in his academic and more popular work is not
interested in providing a detailed analysis of the way in which a mailing list operates
and the reference to public events is only done with respect to rituals in The Regulation
of Social Meaning (Lessig, 1995c), we see that both tools are used in the case of the CC
project. As presented in chapter six, this thesis explores mainly the way in which public
interactions over the mailing lists take place and derives information from the
documentation of the CC Brazil launch (Passman, 2004) as a public event where aspects
of Lessig’s theoretical work seem to be implemented. It is important to note that in the
CC case, though both lists and public events are places where discussions take place, the
author’s personal experience and monitoring of the development of the CC project
indicates that (a) decisions are often being taken in closed fora such as the CC board,
where no minutes are kept neither public access is available and (b) bottom up
interactions often happen in informal settings before or after the formal meetings where
the CC national project representatives have the opportunity to interact and discuss the
CC development future.
The concept of “communal reflexivity” used by Von Krogh and Spaeth (2007) is also
present both in the CC-related research [e.g. (Cheliotis, Chik, Guglani and Tayi, 2007)]
and Lessig’s work [e.g. (Lessig, 2004c)]. Strongly related to the impact aspect
illustrated above, the “communal reflexivity” approach views the FLOSS research
directly feeding into the relevant community:
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“The community of open source software developers, contributors, and users
share a strong interest in why, what, and how the community operates. We term
the ongoing engagement in a dialog about the functioning of the community
‘‘communal reflexivity.’’” (Von Krogh and Spaeth, 2007 p. 246)
Lessig in the late 1990s identifies a series of issues related to cyberspace regulation [e.g.
in (Lessig, 1995e; 1996d; 1998a; 1998d; 1999f; 1999g)] and moves then to a more
detailed presentation of the problems related to increased zoning in the way Cyberspace
works [e.g. in (Lessig, 1996f; 1998c; 1999b)]. He finally focuses on issues of how an
alternative or complement to the existing Copyright system could work in order to
encourage and support collaborative forms of creativity employing Internet technologies
(Lessig, 2001b; 2002a; 2002c; 2003b; 2003c; 2004d; 2004 ). In parallel, as we have
seen in sections 4.4.1 to 4.4.3, he gets engaged with a series of efforts in various levels
to effect change toward the direction advocated in his academic work: from serving as
an expert in the Microsoft case, to initiating the Eldred Case, the Open Law project and
then the Constitutional Commons, Counter Copyrights and finally Creative Commons,
Lessig has actively tried not merely to interact with but also to build a community that
could support views similar to his in relation to creativity and innovation.
Lessig’s work has been followed by a series of other studies that have tried to explore
the ways in which the CC project is developing. Similar to studies like the ones of
Ghosh’s,Glott, Krieger and Robles (2002) or Lakhani and Wolf (2005) in the FLOSS
field, we have studies like the ones of Fitzgerald (2007), Hancock (2007), Hietanen,
Oksanen and Valimaki (2007), Tsiavos (2007) or Cheliotis, Chik, Guglani and Tayi,
(2007) that have been presented in different CC-related events and have exercised great
influence to the ways in which the CC phenomenon is approached by the relevant
community.
Finally, Von Krogh and Spaeth (2007) refers to the concept of “proximity” as yet
another distinct feature of the FLOSS literature that describes the close relationship in
the model behind FLOSS and science. Lessig also refers to this proximity to justify why
a similar model is applicable also in the case of content development and this is one of
the most apparent aspects of his later work. However, Lessig also views such a model to
be common in the production of regulation. As we describe in section 6.4.5, the
production of a regulatory commons has on its basis a similar rationale with FLOSS or
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the science community. As Von Krogh notes for FLOSS, the proximity to science
creation does not mean that the two coincide. This is also valid for the development of
the regulatory commons: they do not happen in the same way or for the same reasons as
FLOSS, science or even the creative commons. However, it is the same model that
supports their production. The realization of this common model is apparent in
Benkler’s work referring to the Commons Based Peer Production (Benkler, 2002), but
what this thesis illustrates by revisiting Lessig’s early work is that such model is also
applicable in the case of regulatory production and innovation.
4.5.3 From FLOSS to Standards and Information Infrastructures
As we have seen in the previous section, Lessig’s interest in FLOSS moves beyond its
specific implementation in the case of software development. This is apparent in the
treatment of the Internet development in all of Lessig’s work. Two aspects of Internet’s
development are of particular relevance to this thesis. First, that the Internet protocols
are viewed as a technical standard of a clearly regulatory character. Though as we see in
section 7.1.2, in this thesis we are more inclined to talk of technologies having
regulatory features than of technologies as modalities of regulation, Lessig’s point is
still relevant: the Internet standards operate as a form of regulation that allow an open
and unrestricted mode of application development. Second, the process of developing
this standard has been an open one, where different participants have had the
opportunity to express their own views on how the protocols were to be developed.
Hence, Lessig is an advocate of the end-to-end model (Saltzer, Reed and Clark, 1984) in
two levels: first, in the level of the Internet Protocols allowing an end-to-end
development of applications over them; and second, in the level of production of the
Internet Protocols in the sense of following an end-to-end model in the management of
the relevant contributions. Most commentators tend to emphasize the first aspect of the
e2e model; however, it is the second aspect of Lessig’s work that, as this thesis argues,
operates as the model used for the development of the CC licences and forms a more
general model for how regulation is to be constructed.
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Brander’s account on the Internet Engineering Task Force (IETF) history provides a
good link between open standards and FLOSS:
“The IETF and its standards have succeeded for the same sorts of reasons that
the Open Source community is taking off. IETF standards are developed in an
open, all-inclusive process in which any interested individual can participate. All
IETF documents are freely available over the Internet and can be reproduced at
will. In fact the IETF's open document process is a case study in the potential of
the Open Source movement.” (Bradner, 1999 p. 47)
The Creative Commons and iCommons organizations have been both greatly influenced
by the organizational structures of the IETF and the Internet Society. Lessig refers to
such organizations as the ancestors of FLOSS in his Free Culture (Lessig, 2004d pp. 7,
262, 276-77) and the Future of Ideas (Lessig, 2001b pp. 34-44) books. There have also
been explicit references to the organizational structure of the iCommons following the
one of IETF during the iSummit 06 (iCommons, 2007; Ford and Chance, 2006; Ford,
Ito, Henckel, Keller, Lemos, Lessig, Medak and Wales, 2006; Faris, 2006a) when the
former’s organizational structure was still under formation. The two basic
characteristics of such organizations, i.e. the use of mailing lists and the organization of
annual meetings, are common and both seem to be related to the ideals and concepts of
FLOSS. The way in which decision making takes place in the case of IETF is also
similar to the one of CC in relation to new specifications of the licences:
“The IETF motto is "rough consensus and running code." Working group
unanimity is not required for a proposal to be adopted, but a proposal that cannot
demonstrate that most of the working group members think that it is the right
thing to do will not be approved. There is no fixed percentage support that a
proposal must achieve, but most proposals that have more than 90% support can
be approved and those with less than 80% can often be rejected. IETF working
groups do not actually vote, but can resort to a show of hands to see if the
consensus is clear.” (Bradner, 1999 p. 50)
The decision making process and governance of IETF and the Internet Society is not
necessarily adopted in exactly the same way in the case of the CC and iCommons and as
a matter of fact it has raised considerable concern among the delegates of national CC
projects. The main concern has been the lack of clearly set out governance rules and the
lack of democratic participation and accountability in the decision making process.
Though the “rough consensus and running code” model may be directly applicable in
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the case of the CC licensing building, as we see in greater detail in sections 6.4.1 to
6.4.5 this is not necessarily the case with greater CC policy decisions.
The issue of participation to the formation of a standard and the Internet standards in
particular plays a key role in Lessig’s work as it relates to the issue of collective
plasticity of regulatory instruments. Interestingly, the issue of collective standard
formation has also been the focus of a stream of Information Systems literature that
makes an approach from the perspective of Actor Network Theory and is interested in
the organizational aspects of standards production [e.g. (Hanseth, 1998; Hanseth and
Braa, 1998; Hanseth and Aanestad, 2002; Ciborra, 2000a; Ciborra, 1998)].
The literature of standards is particularly relevant to Lessig’s work. Standards constitute
a specific form of technical regulation that has as its focus primarily non-humans but
may be implemented only through a combined human and non-human action. The
underlying ontology of the ANT-standards literature stream assumes that a technical
standard has an entity that is beyond its mere specification as expressed in the form of a
document. The standard is instead a hybrid of humans and non-humans and is
materialized only through its implementation. The standard is, according to such an
approach, a Network of Actors, humans and non-humans, that are all held together
through a mutual agreement that makes them align and stick together (Hanseth, 2002a).
This conceptualization of the standard is very close to the conceptualization of the
regulatory phenomenon as seen in Lessig’s work: regulation is not exhausted in the text
of the law but does actually find its materialization either through a process of
interpretation as occurring within the institutional context of U.S. constitutionalism or
through a process of “indirection”, that is, a process where different modalities of
regulation influence each other to realize all together a particular program of action
(Lessig, 1989; 1995c; 1995d; 1996d; 1999f; 1999g; 2003b; 2004b).
Both the standards-ANT literature and Lessig’s work have a common understanding of
the regulatory phenomenon that is based on a semiotic approach that moves beyond the
strict sense of text-as-written-material to material semiotics where (a) the text or token
can be anything that has an agreed and in context uncontested meaning encapsulated in
a particular artifact and (b) the interpretation is conducted not merely by humans but
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also by non-humans in the sense of being configured in accordance or in opposition to
the program of action of the text (Callon, 1986). In the same way that in Lessig’s work
we have the concept of association construction as the objective of any regulatory effort
(Lessig, 1995c), in the standards-ANT literature, the standard is viewed as an effort to
establish an Actor Network where the content of the standard has been linked to
humans, organizations and other technical artifacts (Monteiro, 2000).
We have described in chapter four how in Lessig’s work we gradually move from the
concept of a U.S. supreme judge interpreting the U.S. constitutional Law to the
interpretation of the technological context, then gradually to the interpretation of the
technological context in the letter of the law, and finally the interpretation of the law in
the specifications of the technology. In this trajectory of Lessig’s work we view a
similar pattern towards the four moments of translation appearing in Callon’s work
(Callon, 1986) and being on the basis of many of the standards and ANT papers [e.g.
(Hanseth, 1998; Hanseth and Braa, 1998; Hanseth and Aanestad, 2002; Hanseth,
Jacucci, Grisot and Aanestad, 2006)]. Moreover, in Lessig’s effort to assess the costs of
change by estimating the degree to which a particular meaning is in context non
contestable, we are presented with a model that is again similar to the idea of
irreversibility in an Actor Network. An Actor Network becomes irreversible when the
costs become prohibitive for a change to be effected (Hanseth, 1998).
Thus the enterprise of constructing a standard resemble the effort of constructing
meaning or regulation; and the effort to cultivate an open standard has a series of
common elements with the effort to cultivate an open regulatory instrument. Lessig’s
work has as its starting point references to the open standard development process of the
IETF to gradually move to a model of creating meaning and finally to a project that
openly seeks to produce a set of regulatory instruments, i.e. the CC licences. The IS
literature on standards moves to the opposite direction, examining originally the
problem of standard setting as a purely technical issue to gradually move to a more
sophisticated approach employing ANT and lately making reference to Lessig’s work in
relation to technology or architecture as a modality of regulation (Hanseth and Nielsen,
2007)
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Another stream of the IS literature that is very closely related is the one of Information
Infrastructures, particularly the work of Ciborra (1998; 2000a; 2002; 2004) and Hanseth
(Hanseth, 1998; 2002a; 2002b; 2004; Hanseth and Monteiro, 1998; Hanseth and Braa,
1998; Hanseth and Aanestad, 2002; Hanseth and Nielsen, 2007; Hanseth and Lyytinen,
2007; Hanseth, Monteiro and Hatling, 1996; Hanseth, Ciborra and Braa, 2001; Hanseth,
Jacucci, Grisot and Aanestad, 2006), which are very close to Lessig’s idea of how
architecture or technology regulate both human behavior and other modalities of
regulation. The ANT approach to infrastructures, that is explained by Monteiro (2000),
views them as complex heterogeneous networks that may be cultivated through a series
of steps that resemble Lessig’s suggestions to the fictitious “meaning manager” to
develop meaning through regulatory mechanisms. Hanseth and Lyytinen (2007) provide
a detailed account in a rather prescriptive manner of how Information Infrastructures
could be developed; Ciborra presents the case of the Hoffman-La Roche (Ciborra,
2000c) as a case of non-hierarchical –and to our definitions open- process of
Information Infrastructures development; and Nielsen and Hanseth (2007) present the
case of mobile Internet services development as a process of Information Infrastructure
development that is explored through the work of Lessig (1999f), Benkler (2000; 2006)
and Zitrain (2006).
In all these examples we may trace the development of a school of thought within the IS
discipline that is very close in relation to the issues it is interested in with the
problematic Lessig’s work is raising. However, in all this stream of IS literature, as in
the regulatory theory presented in the first part of this chapter reference to Lessig’s
work is confined in three or four of his works, i.e. the Code and Other Laws of
Cyberspace (Lessig, 1999f), the New Chicago School (Lessig, 1998d) and Free Culture
(Lessig, 2004d) or the Future of Ideas (Lessig, 2001b). Reference to the first two occurs
in relation to Lessig’s introduction of technology as modality of regulation without
paying much attention to the concept of indirection, whereas reference to the latter two
books of his is clearly related to his effort to introduce FLOSS principles in the area of
content or his support to the Free Culture movement through the CC project. Lessig’s
more sophisticated conceptual structures appearing in his earlier work on meaning or
cyber-regulation remain to a great degree unknown to the broader regulation and IS
literature.
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Hanseth and Lyytinen’s definition of what constitutes an infrastructure is illustrative of
the relationship between their work and Lessig’s interest in meaning and regulation:
“An [Information Infrastructure (II)] is a shared, evolving, heterogeneous
installed base of IT capabilities developed on open and standardized interfaces.
It forms complex inter-organizational socio-technical ensembles like the Internet
or EDI networks. IIs are large, complex and heterogeneous; they evolve over
long periods and adapt to unknown needs. IIs are designed as extensions to or
improvements on the installed base which influences how new IIs can be
designed. The proposed theory addresses the design challenge of tackling the
inherent complexity, scale and functional uncertainty of IIs.” (Hanseth and
Lyytinen, 2007 p. 1)
The problem Hanseth and Lyytinen are preoccupied with is very similar to the one
Lessig deals with, but they have a different starting point. The former seek to develop a
design theory for the development of an infrastructure, whereas the latter to provide a
set of guidelines for the regulation of social meaning originally and then for regulatory
design in an Internet environment. Whereas Hanseth and Lyytinen’s problem seems to
be a technical one that has to do with the process and Lessig’s approach one that is more
concerned with the regulatory content, as Black has suggested in her Proceduralizing
Regulation papers (Black, 2000; 2001a), the two are closely interrelated.
Further, as we have suggested in chapter three describing the regulatory distantiation
problem, it is the lack of participation in the regulation building process (procedural
issue) that is the actual cause of the lack of balance in the content of Copyright related
regulation (substance issue). The relationship between the two approaches is also
apparent in the ontological commonalities that we have described above. Though
Lessig’s work is never as prescriptive as the one by Hanseth and Lyytinen, he is also
deeply concerned with the process through which we may establish a meta-regulator in
cyberspace. The features of Information Infrastructures presented by Hanseth and
Lyytinen resemble the core of the problem that constitutes Lessig’s departing point in
relation to regulatory design:
“1) IIs are large and complex; 2) IIs must adapt to functional and technical
requirements unknown during the design period; 3) IIs are designed as
extensions of or improvements to existing IIs; and 4) they combine diverse
components that are not under the control of a singular designer.” (Hanseth and
Lyytinen, 2007 p. 2)
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Such features of IIs are very close to the features of Black’s decentered regulation
(Black, 2001b) or Lessig’s ecology of different modalities of regulation (Lessig, 1998d)
that accumulatively regulate individual behavior through the mechanism of indirection.
Accordingly, the designer of Hanseth and Lyytinen is the equivalent of Lessig’s
“meaning manager” (Lessig, 1995c).
Two further features of design of Information Infrastructures bring them closer to the
question of open regulatory development: in accordance to Hanseth and Lyytinen’s
definitions, they have to be open and adhere to shared standards. Openness is defined by
them as follows:
“Openness in design signifies the lack of borders in terms of the II’s scale, scope
or function. This feature supports IIs’ continuous growth as they cannot erect
limits with regard to the number of elements they include, e.g., applications
integrated, computers linked to the Internet, the number of users or the number
of functions they support. An II must also be open in that it sets no limits as to
who can participate in its design. Lastly, since openness is temporal and an
infrastructure has no definitive start and end times, its development is principally
open in time.” (Hanseth and Lyytinen, 2007 p. 11)
This concept of openness is very close to the principles set by the Free Software
Foundation (Free Software Foundation, 2004) and incorporated by Lessig in his
understanding of how the CC licences are to be built (Lessig, 2005j) or how the problem
of regulatory distantiation presented in chapter three may be resolved (Lessig, 2006a;
2006e).
Accordingly, the issue of standards as agreements is a key part of the understanding of
Hanseth and Lyytinen’s approach. Quoting David and Greenstein (David and
Greenstein, 1990) they refer to the standard as agreement and in that sense they focus on
one of the basic features of regulation as also perceived by Lessig, that is, IIs as the
result of negotiations rather than the fruit of a Command and Control strategy:
“IIs are built on standards that “as general agreements between producers and
users of technology” form another element of design space. Standards thus
describe agreements among user communities concerning the structure and
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functionality of the II while the material infrastructure conforms to and
implements the specified standard set. Therefore, II design is never unilaterally
controlled and involves negotiation across multiple social worlds.” (Hanseth and
Lyytinen, 2007 p. 11)
Reaching an agreement, as indicated by the ANT approach and as appearing in Lessig’s
work does not merely involve human but also non-human actors. As illustrated in
sections 6.4.3 and 7.2.2. in relation to version 3.0 of the Creative Commons licences, it
is not merely the arguments of the humans that are taken into consideration but also the
representation of Technical Protection Measures technologies or the Debian and FSF
standards that are all taken into consideration before the wording of a licence is actually
formed. In the case of Lessig’s work this is expressed in the existence of different types
of technologies either contributing or opposing to the regulatory content of a certain
modality of regulation. In that sense, a TPM system like the one of iTunes is supportive
of the DMCA provisions related to technical measures of protection, whereas a system
like the Azureus Torrent client is opposing them. In order for a regulatory system to
achieve its objectives, this agreement has to be reached. This is particularly well
expressed in the realms of regulatory theory in the more recent work of Teubner (2005),
where non-humans are viewed as actors that are indeed playing a role in the attainment
of agreement, are represented in regulatory instruments and contractual agreements and
should be taken into consideration when the design of such instruments is to take place.
We may trace a resemblance between the opposition of the decentered (Black, 2001b)
approach to regulation to the CAC regulatory approach with the opposition of the ANT/
new institutional theory approaches to Information Infrastructures to the more
managerial or engineering approaches to IIs design (Ciborra, 2000b). Accordingly,
Lessig’s work is easier to position within the critical legal studies, literatures which
opposes legal positivism (Tushnet, 1991). In all these dichotomies we view a more
generic trend illustrating the tension between approaches that take into consideration
complexity and uncertainty and attempt a more participatory approach, and approaches
that follow a more linear and simplistic model for appreciating the same phenomena.
Ciborra’s (2000a) seminal work “From Control to Drift” features exactly the
presuppositions behind such tensions and proposes a model for appreciating control in
the Information Infrastructures setting. The Information Infrastructures literature as
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described in Ciborra’s work (2000b) traces the trajectory of information technology
from the level of the tool to the level of the ubiquitous installed base. The pervasiveness
of IT as explicated in the case of an Information Infrastructure is expressed in the two
features identified by Hanseth and Lyytinen, i.e. openness and reliance on standards-
agreements.
The proximity of Ciborra’s and Lessig’s work lies not merely on the fact that both view
technology or Information Infrastructures as a modality of regulation or as framework in
which behavior is defined, but most importantly in the way in which the control of such
technology is approached. The case of Hoffman-La Roche [see (Ciborra, 2000c) and the
more recent (Nielsen and Aanestad, 2006)] that Ciborra uses as a primary example for
describing how “drift” as the opposite of strict hierarchical control operates is
expressive of the links between his work and that of Lessig’s. The information system
described in the Hoffman-La Roche case is an Intranet that is built in the same open-
ended and end-to-end principle as the Internet protocols. The way in which several
applications are added to such a network within a corporate setting is exactly Lessig’s
description of the reasons why the Internet allows innovation. Ciborra’s contrasts such a
model to the ERP systems and Lessig’s the un-zoned early Internet before the mid
1990s with the post 1990s Internet where “zoning” is the prevalent strategy and control
appears as the primary concern.
Ciborra refutes the position that technology may be directly controlled through a classic
single point or be developed only on the basis of an a-priori set of requirements.
Instead, the development of Information Infrastructures is seen as a much more complex
process of co-definition of the desired outcome through collaboration or coercion.
Lessig also gradually acknowledges in his work that technology, similarly to meaning
or any other form of regulation, has to be developed in such a way so that a collective
action problem is solved. As explained in chapter three and explicated in the case of
Copyright, it is not that a regulatory instrument cannot be developed through a direct
command and control strategy but such an approach is deemed to increase enforcement
costs. Black’s decentered regulation approach (Black, 2001b) makes similar
conclusions: not only is technology used increasingly as a means for producing a
desired regulatory result, but it is regulation in general that needs to be developed in a
more cooperative, inclusive, non-centralized and open fashion. Hence, Ciborra (2000b)
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and Hanseth (2002a) use the term cultivation in relation to IIs, whereas Fitzgerald
(2007) and Tsiavos (2007) use the same term in relation to Creative Commons, Lessig
(2004d), Benkler (2001) and Boyle (1997a) refer to ecologies and institutional
ecosystems, and Black and Teubner refer to gardening [(Black, 2000 p. 5), (Teubner,
1992)]
The common denominator in all such approaches is that the developer of an Information
Infrastructure or a regulatory instrument: first is not building something from scratch, as
there is always an installed based which she has to take into consideration; and second,
that such a developer or cultivator cannot predict the outcome of her effort but only tries
to influence the regulation or information infrastructure towards a certain direction
taking into consideration a multiplicity of other actors playing a role as important as that
of the cultivator’s. The concept of cultivation is most clearly understood when
contrasted with that of construction as Hanseth and Lyytinen when quoting the work of
Dahlbom and Janlert do:
“[When we] engage in cultivation, we interfere with, support and control, a
natural process. [When] we are doing construction (i.e. design in traditional
sense (authors)), [we are] selecting, putting together, and arranging, a number of
objects to form a system... [Cultivation means that] ...we .. have to rely on a
process in the material: the tomatoes themselves must grow, just as the wound
itself must heal.” (Dahlbom and Janlert, 1996 pp. 6-7)
The guidelines provided by Hanseth and Lyytinen in relation to the development of an
Information Infrastructure are expressive of precisely such a philosophy. They provide
five principles for designing an Information Infrastructure that are based on the kind of
understanding we have described above:
“1. Design initially for usefulness: Design the II so that it is initially useful even
though the first users do not get any value from the number of users using the
infrastructure
2. Draw upon existing installed bases: Utilize existing infrastructures as much as
possible in the diffusion of the infrastructure
3. Expand installed base by persuasive tactics to gain momentum: Build an
installed base as fast as possible.
4. Make it simple: Each element in the II should be as simple as possible
5. Modularize by building separately key functions of each infrastructure, use
layering, and gateways” (Hanseth and Lyytinen, 2007 p. 23)
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All five elements that Hanseth and Lyytinen identify may be seen in conjuncture with
Lessig’s techniques of association construction for meaning development and the
features of FLOSS development that we have identified in sections 4.4.1 to 4.4.4. These
five elements in conjunction with Lessig’s association construction techniques provide a
first framework for how a construction-cultivation model may be developed. The
common element in both cases is that there is a great appreciation for existing IIs or
regulatory infrastructures. Hanseth and Lyytinen underline that there may already be
infrastructures in place that need to be taken into consideration before a new one is to be
developed; Lessig also places emphasis on the existence of a certain social meaning that
needs to be altered but it cannot be changed without some form of mechanism that
allows the channeling of collective action. The two models seem to be linked with each
other through various mechanisms of tying as we have seen in section 4.1.4. Lessig’s
model also contains the element of ambiguation that is not found in Hanseth and
Lyytinen’s model, whereas it is may be seen as related to the interessement moment in
Callon’s (1986) four moments of translation model: in order to achieve the construction
of certain set of associations, the rest of the associations are blurred or blocked. A
FLOSS, cultivation or end-to-end model comes as a detailed add on to the Hanseth/
Lyytinen and Lessig’s meaning construction model to present particular technical
implementations (e.g. through mailing lists) of how it is possible to give voice to the
ends of a network and thus allow the cultivation of a certain regulatory ecology. In
conclusion, all such models seem to be gradually moving toward the same direction of
allowing regulation to be developed by the regulated subject rather than by a
distantiated center.
4.6 Conclusion
The analysis conducted in this chapter provides a first list of answers in relation to the
three puzzles posed at the outset of this chapter (section 4.) in relation to Lessig's work
and allows the construction of a theoretical framework through which the Creative
Commons case should be seen (chapters six and seven) in order to address Elkin-
Koren's concerns (chapter two).
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Starting with the first question, the conclusion that emerges from an analysis of Lessig's
theoretical work is that his interest in Intellectual Property rights is driven by his
broader interest in the post-constitutional and meta-regulatory politics over the Internet
(section 4.4). His focus initially on the construction of the Internet Protocols, then on
the Free Open Source Movement, and finally his initiation of the Creative Commons
project seem to be the result not merely of his interest in the enclosure of the Public
Domain or the Commons but also his deeper concerns regarding the de-democratization
of a space like the Internet (sections 4.4.1 and 4.4.2) and his concern for identifying a
meta-regulator for its governance (section 4.4.3). Further to that Lessig's interest seems
to be in identifying the principles that should govern particular domains of action over
the Internet and that would be able to influence the politics of the real space
environment (section 4.4.3).
The answer to the second question regarding innovation and conservation relates to
Lessig's research project as identified throughout this chapter: Lessig is interested in
preserving values, principles and traditions for which there is a social agreement
(sections 4.1 to 4.1.4). In his quest for fulfilling such an objective, Lessig accepts the
national and international laws as being the domain to start with for the investigation of
such principles. When such investigation fails, Lessig moves into an exploration of the
values expressing agreement within a particular domain. In that sense he needs to be
innovative in his exploration. Lessig's world view is not that these principles exist and
are necessarily to be discovered but potentially that they need to be agreed and as such
his objective becomes to provide the tools to the individuals for expressing and
negotiating such principles. Lessig's work on construction is particularly useful in that
sense (section 4.1.4). Though he believes that such construction is possible he also
believes that it may be directed and as such there is need to provide the safe-guards of
public law or the safe-guards of democratic accountability and transparency for the
discovery and construction of these values (section 4.4).
The third question is answered by viewing Lessig's approach of state intervention and
public regulation principles as two distinct issues: a regulatory instrument may be
private in origin but susceptible to collectively plastic formation. While acknowledging
the existence and influence of national legislation Lessig also acknowledges their
inherent limitations and the multi-source regulatory environment the Internet constitutes
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(sections 4.2 and 4.3). In his quest for the meta-regulatory values Lessig will seek for a
non-uniform, decentralized and as close to the regulated subject mode of meta-
regulator. Such an investigation will lead him into an investigation of the principles
contained not any more in the U.S. constitution but in the Internet Protocols and the
modes of working of the Internet standard setting bodies to then move into their
crystallization into the General Public Licence and finally suggest a similar model for
the content in the form of the Creative Commons project (section 4.4). Lessig views the
free construction of meaning, the free culture, to be threatened by the privatization of
regulation through end user licence agreements, the capture of Copyright law by private
interests and the subsequent virtually unrestricted legitimization of the technical
measures of protection; however, he tries to respond with an innovative conservation
measure: by providing tools for the construction of private regulation in accordance to
public law principles.
The investigation of the three puzzles regarding Lessig’s work presented at the outset of
this chapter provided the constituent elements for a conceptual framework allowing an
approach to the CC project not merely as an effort to establish the creative commons but
also as a regulatory phenomenon seeking to deal with the overall issues related to the
Copyright phenomenon as described in chapter three.
In sections 4.5.1 to 4.5.3 we have seen how Lessig’s work is related to different bodies
of literature ranging from regulatory theory, to FLOSS literature and a certain stream of
Information Infrastructure research.
Section 4.5.1 deals with the ways in which regulatory theory approaches some of the
issues that Lessig also deals with in his work. In particular we explore Black’s work
[e.g. (Black, 1997; 1998b; 2000; 2001a; 2001b; 2002a; 2002b; 2007)] and the way in
which our understanding of the regulatory phenomenon shifts from one of a Command
and Control model to one of a more decentered structure. The repositioning –and
questioning- of the role of state in such a multi-source regulatory environment is
featured in Scott’s (2004a) post-regulatory state and in Baldwin’s (2005) quest for smart
or better (2006) and Braithwaite’s (2000)responsive regulation. Black and Teubner’s
(Black, 2000; Teubner, 1992) approach to regulating as gardening of existing regulatory
forms seems to be bringing together all the aforementioned issues: in such a model the
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regulator seeks to take advantage of pre-existing regulatory tendencies rather than to
produce regulation as if there is nothing already in place. This brings us to the problem
of situational regulation, that is, regulation that is not experienced as such by the
regulatee but is embedded in existing structures. Brownsword (2005; 2006) emphasizes
the lack of choice the individual has in following or not such regulatory structures and
hence questions the degree to which it is limiting to the freedom of the individual. All
these issues are related to different aspects of Lessig’s work on regulation as explained
in chapter four and conclude to the same results as chapter three, that is that the problem
with such a regulatory environment is that a different regulatory approach is needed
from the one currently followed by mainstream Copyright theory and such an approach
is found initially in Lessig’s work and subsequently in its implementation in the CC
project.
In section 4.5.2 we have the opportunity to view how the FLOSS model and the related
research feature characteristics that are found both in Lessig’s approach to the
regulatory problem and the CC implementation. More specifically, we present
O’Reilly’s (2006) three Cs model (commoditization, customizability, communication)
describing the main features of FLOSS software and then see how these same features
appear both in the regulatory model Lessig presents in his work and the CC project. We
also explore how the various aspects of FLOSS related research as presented by Von
Krogh and Spaeth (2007) resemble Lessig’s work and its application to the CC project.
The outcome of this investigation is to appreciate software as regulation and regulation
as software and to trace the implications of the transition of a model that was originally
created for the development of software to the context of the development of a
regulatory instrument.
Finally, section 4.5.3 returns to the origins of the FLOSS phenomenon and the use of a
similar model for the development of standards, the Internet Protocols in particular,
before the formal advent of FLOSS. A standard having the character of a regulatory
instrument has features that make such a mode of development particularly suitable for
it. A standard requires the construction of associations between those willing to use the
standard (technologies, humans and organizations) in order to properly function. An
Actor Network Theory inspired approach to standards (Monteiro, 2000) and
Information Infrastructures emphasized precisely an understanding that views them as
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hybrids of humans and non-humans that have to be cultivated rather than constructed.
We examine the work of Ciborra (2000a) and Hanseth (Hanseth, 2002a; Hanseth and
Aanestad, 2002) and we draw links with Lessig’s and Black’s regulatory models.
Finally, we compare Hanseth and Lyytinen’s (2007) five design principles with Lessig’s
association construction techniques and make a quick reference to Callon’s four
moments of translation (1986). Section x.3 concludes with an emphasis on the
cultivation model that assumes that any regulator should seek to take into consideration
and cultivate existing regulatory structures.
This chapter concludes the series of the two chapters that present the facets of literature
related to this thesis: the Copyright issue (chapter three), Lessig’s work as adapted to a
conceptual framework for the CC project (sections 4.1 to 4.4) and the positioning of his
work within the broader literature on regulation, FLOSS, standards and Information
Infrastructures (sections 4.5.1 to 4.5.3). The following chapter deals with the research
design followed in this thesis and further explores links between Lessig’s work and
notions from Actor Network Theory.
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Chapter Five Methodology
5. Introduction
The objective of this chapter is to illustrate the methodology used in this thesis for the
collection and analysis of the data related to the CC project as presented and analysed in
chapter six and discussed in chapter seven. In this section we present the basic
philosophical biases of the research method and the way it links to previous chapters of
this research.
Information Systems (IS) is a social science discipline that has been characterized as
social systems of which Information Technology is one aspect (Galliers, 1992), and as
such invites a multiplicity of methods for approaching the object of study. The
boundaries between the social and the technological are not set. As a result, a long
debate has been initiated regarding the way in which the technological artifact should be
treated (Orlikowski and Iacono, 2001) (Monteiro and Hanseth, 1995). The discourse on
the way technology should be approached in the context of the IS field has often raised
questions regarding the way in which different disciplines may contribute to its
investigation (Avgerou and Rovere, 2003). This understanding of the multiplicity of
sources for informing our investigation of the technological artifact has led to the
implicit conclusion that there is no single or universal methodological approach that
could include all the domains of knowledge needed for the study of Information
Systems (Galliers, 1992). However, while research agrees that a universal
methodological approach is not advisable or feasible in the case of IS, the combination
of multiple research approaches or the introduction of new ones from other disciplines
is an issue examined by various researchers of the IS field (Galliers, 1994; Miles and
Huberman, 1994; Yin, 2003; Lee, 1991)
Lessig’s ontological assumptions regarding regulation presented in chapter four
(particularly sections 4.1.1 to 4.1.4) predispose towards a methodological approach that
seeks to trace the constitution of associations. This thesis views the CC project as an
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effort aiming primarily at the increase of participation to the constitution of regulatory
associations and is directly influenced by Lessig’s understanding of the e2e model as a
paradigm for allowing the expression of the ends of a regulatory network (sections 4.4.2
and 4.4.3). Such a model is compatible with the concept of ‘sociology of associations’
seen in Actor Network Theory (ANT) to describe the way in which social phenomena
are constructed (Latour, 2005). The understanding of technology as an association
assembly and the treatment of the social and the technical on equal terms are the
features of ANT that are closest to the Lessig vocabulary for describing the regulatory
phenomenon and in that sense we regard it as the most appropriate means for informing
our data analysis.
In this research we combine a variety of data types and data collection and analysis
techniques in order to critically approach the phenomenon of Copyright and Creative
Commons. In that sense, this research seems to be falling under the broader tag of
critical studies having as its main task to critically assess the restricting conditions of the
status quo (Orlikowski and Baroudi, 1991). This thesis comes close to two of the
founding conditions for being characterized as critical research: (a) it investigates the
relevant phenomena at a situated level and (b) it seeks to critique assumptions that are
taken for granted (Alvesson and Willmott, 1996; 2003)
The critical philosophical assumptions driving this research are compatible with the
main ontological framework of its basic constituent parts, which is that of critical legal
studies: First, Lessig, whose theoretical work as we have seen in chapter four is the
conceptual basis of this thesis, in his early work (Lessig, 1989) emphasizes the
importance of critical legal studies as a discipline that explores the conditions of social
change, something that, as we will see, is a core investigation task in most of his later
work both academic and in the CC context:
“Along one front of the battle between Critical Legal scholars and others is a
struggle over the nature of social transformation, a debate over the ease with
which a society should be able to change itself from what it is to something else”
This research aims at exploring how the CC project operates as a social transformation
project that supports the regulatory autonomy of the creator and aims at the resolution of
the distantiation problems presented in section 3.6.
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Second, Elkin-Koren’s (2005) and Dussolier’s (2006) work, which is our primary
source of the academic critique of the CC project as we have seen in sections 2.3 to 2.8,
is also heavily influenced by the field of Critical Legal Studies though they both contain
elements of doctrinal analysis in their approach to the issue of CC licensing.
Third, the Commons literature, particularly the work of Boyle (1997a; 2003c) and
Lange (Lange, 1981; 2003a), which we have seen in sections 3.3 and 3.4, also falls
under the broader category of critical legal studies and to a great extent informs our
investigation of the CC project as we also explain in section 7.1.
Fourth, all regulation theory references used in section 4.5.1 ranging from the work of
Black [e.g. in (Black, 2002b)] and Teubner [e.g. in (Teubner, 1992)] to that of Baldwin
[e.g. in (Baldwin, 2006)], Scott [e.g. in (Scott, 2004a)] and Brownsword [e.g. in
(Brownsword, 2005)] are all critical to the Command and Control regulatory model.
The same is valid with respect to the FLOSS literature as Von Krogh [e.g. in (Von
Krogh and Spaeth, 2007)] notes (section 4.5.3) and the references to Ciborra’s [e.g. in
(Ciborra, 2000a; 2002)], Monteiro’s [e.g. in (Monteiro, 2000)] and Hanseth’s [e.g. in
(Hanseth and Lyytinen, 2007)] work that are critical of the mainstream or “managerial”
Information Infrastructures literature.
Accordingly the collection and analysis of the relevant data are informed by a critical
research approach seeking to unveil the reasons behind the choices made in the CC
project that appear as inconsistencies in the CC critique (section 2.6).
This chapter comprises of two parts. In the first part (sections 5.1, 5.1.1 and 5.1.2) we
explain why ANT has informed our data collection and how we have followed “in
action” the CC actors, specifically through their interactions over the cc-licenses
mailing list. The second part (sections 5.2, 5.2.1 and 5.2.2) deals in detail with the ways
in which different aspects of the data analysis contribute to the exploration of the
character of the CC project.
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The following section presents how ANT and Lessig’s theoretical work share some
common ground and they way such a combined approach could inform the data
collection and analysis.
5.1 Research Design
The core of the methodological approach followed in this thesis is to view regulation
not as a ready made, uncontested and black-boxed artefact but rather as a set of
associations potentially susceptible to change and intervention. This is an aspect of our
research we have partially investigated in the critical review of Lessig’s approach to the
issue of regulation and Cyberspace in sections 4.4.1 to 4.4.3. Consequently, when
investigating the CC project we are interested in the way in which the constitution of
associations is facilitated in order to produce the CC set of licences. ANT is informative
of the way in which we could approach the issue of data selection and collection to
serve the purposes of our research:
“We study science in action and not ready made science or technology; to do so,
we either arrive before the facts and machines are blackboxed or we follow the
controversies that reopen them.” (Latour, 1987)
ANT refers to science and technology but as we have seen in Lessig’ work in chapter
four (section 4.3) in the same way as Latour speaks about the social in terms of
associations, Lessig uses the same heuristic in order to describe the regulatory features
of technology, regulation, markets and social norms [e.g. in (Lessig, 1998d; 1999e)].
The most appropriate starting point for the identification of the CC project elements that
are likely to be issues of controversy is the critique of the CC project, which was
presented in sections 2.2 to 2.8. The first aspect of the critique that is relevant to the
methodology design is its focus: the CC critique relates to the CC licences and the kind
of meaning or associations they produce. The second aspect of the critique relates to the
issues identified in relation to the licences. The basic concerns of the critique relate to
the fuzzy ideology they produce and the way in which the use of more than one licences
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with no common set of principles could be detrimental to the concept of the Commons
as identified in Elkin Koren’s work (2006a).
Both the basic constituents of the CC critique inform the choice of data range that is to
be collected and analyzed. Since the main area of controversy relates to the licences it is
the construction of the licences that should define the area of our data selection. The
critical review of the literature related to the Copyright – Technology interaction in
chapter three and Lessig’s regulation-as-association ontology of chapter four explain
why we are interested in the process of the CC licence constitution rather than their
application.
In section 3.6 we have identified that the crux of the distantiation phenomenon is the
alienation of the creator that bases her work on the reuse and remix of content or the
user that wishes to share copyrighted material from the process of regulation
development. In sections 4.4.1 to 4.4.2 we have seen how in Lessig’s analysis this
distantiation phenomenon may be described as a gradual process of excluding certain
classes of authors from the process of regulatory association creation and how this is a
phenomenon that is particularly intense over the Internet. The critique of the CC project
in sections 2.2 to 2.9 has indicated that the CC project seems particularly problematic if
conceptualized as a project aiming solely and directly at the support of the Public
Domain and the resolution of the imbalances identified in section 3.2.
A combination of all the above in the face of the inability of the CC project to directly
achieve the creative commons poses the fundamental question that is explored in this
thesis: If the CC project cannot directly produce the creative commons, do we have
reasons to believe that it could indirectly achieve the same objective by allowing access
to the formation of the CC licences in non discriminatory terms? To use Lessig’s
vocabulary in relation to the regulatory dimension of the Commons we have identified
in section 4.4.3, we could pose our basic research question in relation to whether the CC
project could be seen as a regulatory commons project.
Such a perspective requires an exploration of the way in which the most contested
aspect of the CC project, the CC licences, is actually constituted. It requires following
the various CC actors in their interactions to build the licences and explore the results of
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their actions in the face of the contribution to a regulatory commons that could support
the creative commons.
The CC critique is employed again, after the analysis of the relevant data in chapter six,
in the discussion chapter (particularly sections 6.2.4, 6.2.5 and 6.3) in order to assess the
degree to which an approach that views CC as a regulatory commons could explain the
controversy points raised in sections 2.2 to 2.9.
In the following two sections we present how Lessig’s conceptual framework is related
to the ANT approach and the ways in which an ANT inspired approach could facilitate
the design of the data collection and analysis in this research.
5.1.1 Links between ANT and Lessig’s work
Lessig in his early work is particularly interested in the concept of meaning which he
employs as an alternative term for associations, arguing that meaning is preferable as
implying agency in contrast to associations that offer more passive connotations
(section 4.1.2). An association or meaning is activated when a token or text is placed
within a particular context. Lessig clarifies that the use of the term text or token should
be perceived in its broadest sense as an effort to apply semiotics to all kinds of entities.
Lessig's predicament resembles in that sense the description of ANT as a “relentless
application of semiotics” (Law and Hassard, 1999), though his interest is more one of
how the association constructions are actually made rather than one of adopting a
specific theoretical stance. This is expressed in his early work (Lessig, 1989) in his
statement that he is interested in “pragmatics rather than semantics” (section 4.1.1).
The interest in associations in Lessig's work is of particular relevance as his overall
orientation is towards the problem of regulation. Society in Lessig's work disappears
between the concepts of meaning and regulation. The social as such exists only in
relation to the two aforementioned notions. This is reminiscent of Actor Network
Theory’s implicit ontology regarding society: “there is no such a thing as society”
(Latour, 2005 p. 5); there are only associations that need to be followed if anything is to
be studied. Lessig is also interested in the tracing of such connections in order to
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construct regulation. He is further interested in the cost any attempted construction may
entail and in that sense he is close to the ANT approach viewing the notion of the Actor
Network being one requiring work or effort in order to be constituted (section 4.2).
In the process of following different actors we essentially trace their workings, the
trajectory of associations they create as they proceed into the construction of the entity
we investigate, i.e. the Creative Commons project. The aspect of Latour's definition of
the Network that is most relevant to our research is the one approaching it not as a given
but rather as the end result to which effort has to be invested. In Latour's words:
“Work-nets could allow one to see the labor that goes on laying down the net-
works: the first as an active mediator, the second as a stabilized set of
intermediaries” (Latour, 2005 p. 132)
Such a network is not something fixed but rather something constructed that could
always collapse:
“To make it fit our purposes, we have to add a fourth feature that, I agree, breaks
down the original metaphor somewhat: a network is not made of nylon thread,
words or any durable substance but is the trace left behind by some moving
agent.” (Latour, 2005 p. 132)
Even more importantly, Lessig's project is not merely the tracing, but mainly the
construction of such associations: the breaking down of existing ones and the creation
of new ones not only in theoretical level but also in his real-life project of the Creative
Commons. Lessig is aware that these two acts, the disassembling and reassembling of
associations is a costly enterprise, an enterprise that is not easy and that may be only
achieved if the costs are somehow reduced. This understanding of association
construction in terms of costs is similar to Latour’s point that connections “are not made
for free” (Latour, 2005 p. 132).
In the case of the investigation of the CC project, the way in which data and theory are
used is not clearly demarcated: while Lessig’s work is presented in chapter four as a
theoretical work that allows us to explore the distantiation phenomenon (section 3.6)
and the way in which the CC project may be conceptualized using an association
language, in chapter six, Lessig and his work are presented as part of our data. In the
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concepts we borrow from ANT we should also add that theory does not have a
privileged position over the data collection and analysis.
In summary, the ANT concepts presented in this section indicate its compatibility with
Lessig’s work and set the background for the explanation of the way in which the
principles of “following the actors” and tracing the construction of an Actor Network
while assessing the effort it requires or the costs it entails could contribute to the
detailed data collection and analysis.
5.1.2 Implications of ANT and Lessig’s conceptual framework for the
data collection and analysis
The idea of following the CC actors in the process of constructing the CC licences as an
expression of the ANT principles identified in the previous section informs the way in
which the relevant data are collected and analyzed.
The version of constructivism found in Lessig’s work has also greatly influenced the
way in which we have collected and analyzed our data. First, regarding constructivism,
Lessig’s view of law or meaning as constructed does not imply that they are ‘fabricates’
as in ‘not-real’; the aim of Lessig’s constructivism is, similarly to Latour’s, to show that
things could have been different (Latour, 2005 p. 89). In fact Lessig’s predicament is
even more ‘activist’: it is not merely that things could have been different but that we
can make them different. The idea of constructivism in Lessig’s work is equally
focused, as in Latour’s (2005 p. 89) accounts, on associations rather than on society as
an amorphous whole. Lessig does not prefer the positivist over the interpretivist models
or the other way around but is rather interested in the ways in which each one of them
may contribute to the exploration of different aspects of the association construction
phenomenon.
This is clearly manifested in the “Regulation of Social Meaning” (Lessig, 1995c) and
“New Chicago School” (Lessig, 1998d) papers where he tries to combine interpretivist
and positivist traditions in order to assess the net regulatory effect of meaning and new
technologies regulation respectively. It is even more clearly expressed in the “Social
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Meaning and Social Norms” (Lessig, 1996b) paper, where he illustrates the way in
which different approaches may be seen from a utilitarian rather than dogmatic
perspective:
“The virtue of economics is its economy. Its sparse ontology. Its simplicity.(…)
There have been critics: those who complain that too much is missed; that the
reduction is not without loss; that what is essential has been lost. But in large
measure, these complaints miss the mark. One does not mind pocket- sized
maps, so long as they guide reasonably well.” (Lessig, 1996b p. 2180)
Such approach is manifested in this thesis by choosing to use qualitative and
quantitative data while following a critical perspective in order to approach the different
aspects of the CC project.
The following sections deal specifically with the issue of data collection and analysis
and explain how the ANT/ Lessig approach has influenced the specific choices made.
5.2 Detailed data collection and analysis
This thesis argues that the CC project primarily operates as a regulatory commons that
only at a second level contributes to the creative commons. In order to explore the
validity of such a position, it is necessary to explore the ways in which what we have
described in chapter three as “native regulation” is actually given voice in the case of
the Creative Commons project. As we have seen in chapter four, the application of an
end-to-end model in the regulatory context essentially means the provision of the ability
to the ends of a regulatory network to express their will. In chapter sections 4.5.1 to
4.5.3 we have seen how such an approach is common in regulation, FLOSS and
Information Infrastructures theory and that the main question is how to govern such a
model of meta-regulation.
In order to explore precisely this process of expressing native regulatory forms while at
the same time cultivating their development towards a specific direction, we have used
five types of data. These are presented in more detail in the following sections, but for
the time being it is important to explain how each of these types contributes to our
understanding of the regulatory cultivation and expression of native regulatory forms.
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The key area of our investigation is the “cc-licenses” mailing list. This is the list where
public discussions over the development of the licences took place during the period
under study. As explained in chapter section 4.5.2, mailing lists have been the primary
instrument for the development of open standards and in particular the Internet
standards by the IETF. We have also indicated in section 4.5.3 that one of the primary
instruments of development adopted from the FLOSS movement by CC for the creation
of the licences has been the mailing list. In the CC case, the mailing list operates as the
instrument that allows the native regulatory forms to be expressed through the
presentation of different cases of CC licences application by different users across time
and space.
However, such a postulate needs to be further explored in the sense of who actually
participates to the list and what form such participation takes, what is the structure of
interactions and what is discussed over the lists. Each of these three questions requires a
different type of analysis of the messages exchanged over the mailing lists and all
contribute to our understanding of the phenomenon of expression of native regulation.
In terms of participation analysis, we seek to identify who are (a) the most active
participants (b) the ones that are present for most time on the lists (c) the ones whose
contributions have most impact and finally (d) the ones that initiate the most
discussions. Such an analysis will allow an exploration of which forms of native
regulation representations are more likely to appear on the lists.
In terms of thematic representation, it is important to know which are the themes that
are most actively discussed on the list. This provides us with a picture of which are the
regulatory issues that are of most importance to the list participants and in that sense
which are the forms of behavior that are more likely to inform the creation of the CC
licences. This kind of data most clearly relates native regulatory forms and the Creative
Commons licences.
Finally, in terms of interaction patterns, we seek to visualize the ways in which
messages initiated by different participants are likely to be linked to other participants’
responses. Such a data analysis technique allows us a first view of how the regulatory
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commons would look like in the case of the CC mailing lists. It shows how the native
forms of regulation find their way into the CC licences through a series of interactions
that –as we will see in chapters six and seven- though often seem fragmented and
unrelated are linked to each other through a variety of mechanisms. The identification of
such mechanisms and the explanation of their operation in chapters six and seven is key
for appreciating how a mechanism that seems to be providing a flat mode of
participation is actually organically cultivated toward a particular direction through
static and dynamic cultivators.
The analysis of the licence operation is another analytical tool that is used in order to
explain the relationship between the autonomy of the creator and the emergence of a
commons. Two aspects of the licences are the focus of this study: First, the operation of
the standards template found in all licences; and second the operation of the ShareAlike
element. In both cases the objective is to illustrate how the commons are actually
formed in the case of the operation of the licences and then (a) relate it to the critique
exercised to the CC organization and (b) link it with the transition of the CC project to a
project aiming at the creation of licence-based commons to the cultivation of principle-
based commons (sections 6.3, 6.4.3 and 6.4.4)
Finally, we use a series of different data sources ranging from formal CC material to the
Lessig 2005 series of newsletters and interviews with Lessig and Boyle in order to
provide background information concerning the CC project. This kind of data are used
not so much to describe how native regulatory forms find their way into the CC project
but rather how the formal CC organization steers the cultivation towards the desired
direction, primarily through a series of meaning construction mechanisms.
The following sections constitute a detailed presentation of the data collection and
analysis in accordance to our ANT/ Lessig approach illustrated in the previous sections.
In each of the two following sections (5.2.1 and 5.2.2) we present the way in which data
were collected and analyzed focusing primarily on data deriving from the “cc licenses”
mailing list, as our objective is to explore the associations of the CC licences and this
mailing list is the main locus where the relevant discussions take place. The rest of the
data collected and analyzed were used either for the illustration of the construction
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taking place in the CC project but occurring on a different level (CC licences legal texts
to indicate construction of associations through the operation of the CC licences) or to
compile a background narrative concerning the operation of the CC project (all other
types of data).
5.2.1. Data Collection
Data collection took part in five stages in accordance to the five different broad types of
data that were used for the exploration of the project: [i] postings on the ‘cc licenses’
mailing list [ii] formal material from the CC organization and other affiliated
organizations [iii] Lessig’s series of twelve Newsletters in late 2005 [iv] the CC licences
[v] two interviews with Lawrence Lessig and one with James Boyle in relation to the
various findings from the ongoing analysis of the data.
The first type of data were postings collected from the main CC mailing list, the ‘cc
licenses’ mailing list. We have used two data sets, one (primary) operating as the main
source of empirical data and a second one (auxiliary) functioning as a controlling set.
The primary data set ranges from August 2002 to December 2003 and covers all
interactions between the mailing list participants irrespective of their topic. The
auxiliary data set was not chosen on the basis of a defined time period but rather a part
of the discussion concerning v.3.0 of the CC licences and is located in August 2006.
The rationale behind the use of a primary and auxiliary data set was to explore whether
the patterns appearing in the primary data sets, particularly the ones related to the
interaction patterns were to be repeated in a different time. The primary data set covers
the very first period of the CC project whereas the auxiliary one the latest developments
on the mailing list discussions.
Each of the messages collected was inserted in the bibliographical database of the thesis
including among other information, the name of the sender as appearing on the list, the
URL in which it may be accessed on the ibiblio servers, the posting date and the most
recent access date.
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The 'CC licenses' mailing list operates on the iBiblio servers and access to the list only
requires a simple registration by the user. The archives of the cc mailing lists are
publicly available and may be downloaded as ASCII files or accessed directly on-line in
the form of archived web pages. These archives are available in monthly units, where all
postings or messages that have been sent are gathered together and presented in two
alternative forms, either ordered in terms of the time they were sent or the thread under
which they are placed. A 'thread' is the topic under which a message is posted and
operates de facto as a unit for the ordering of the messages as they are sent to the
various participants of the mailing list: the message is sent with a specific topic and then
other participants choose to change the thread topic, create a new topic or answer to the
issues posted keeping the topic intact. This chain of messages posted under the same
topic constitutes the thread. The iBiblio lists allow an archiving of the messages either
by date or by thread but always in monthly units. In this thesis we have chosen to
analyze the messages using the time unit of the month but the classification of the
thread following the default pre-classification found in the archives of the lists. It is
important to note that the dates of posting of the relevant messages as appearing in the
archives is sometimes misleading of their actual sending time as each message gets the
time stamp of the mail server of the sender and due to the different time zones the
automatic ordering done by the ibiblio servers does not always correspond to the actual
time in which they have been received, and this is yet another reason why we have
chosen to opt for the thread classification.
In the primary data set a variety of threads appears, whereas in the auxiliary one we
follow the interactions occurring in a single thread, that of CC v.3.0. The positioning of
primary and auxiliary data sets in the life-cycle of the CC project allows a further
clarification of the features of the list that are time specific and those that seem to be
more mailing list-ingrained.
The second type of data were formal CC data which were collected in the period
between January 2005 and June 2006 and involved formal CC audiovisual and textual
material. The following types of material were collected: (a) audiovisual material (b)
formal CC website material (c) formal CC Frequently Asked Questions material in wiki
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form (d) the CC and iCommons blogs (e) material from the Science Commons,
iCommons and ccMixter sites.
Overall, we collected four CC short films, web pages from the CC, iCommons, ccmixter
and Science Commons sites, one wiki related to the CC FAQ and two blogs (CC and
iCommons).
A detailed list of the material that was collected in relation to the formal CC project was
created indicating the type of material, the specific title of the web page, the format of
material (wiki, web-page, audiovisual material, legal documentation) and the date of its
creation. All relevant material was stored in pdf documents and indexed in accordance
to the date of collection. This was deemed necessary due to the changes in the relevant
web-pages and removal of material from the CC servers.
The data of this second category were complemented with data from two more sources
constituting the direct ancestors of the CC project, the Counter Copyright and Open
Law projects. We managed to collect their archived web pages from the Internet
Archive and also stored and indexed them in the same way as the other CC material.
This type of data has been collected as a result of exploring the way in which the formal
CC attempts to construct associations concerning its basic features and operation
particularly in relation to the CC licences. This was the reason why we did not seek to
collect detailed material from any source other than the CC project. The objective was
to explore the kinds of associations the formal CC project was attempting to construct.
The third type of material comprises of Lessig’s twelve Newsletters that were posted
between October and December 2005 and describe the basic features of the CC project,
respond to the various CC critics and explain the basic operation of the licences. Each of
these newsletters was identified, indexed and stored in Portable Document Format.
The fourth type of material collected were the variations of all CC licences v.2.5
resulting from the combination of the three basic CC Licence Elements (Atrribution,
Share Alike and Non Commercial) with the basic CC template. We collected v.2.5 CC
licences, as they were the most recent version at the time of collection (January 2006).
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The process of data collection and analysis has been done in an iterative and
incremental way following as a criterion for the progress of the whole process the
saturation of our findings: initially we have collected data from August 2002 to August
2003, then we collected data until the end of 2003 and then we used an auxiliary data set
in order to control the findings of the first data set. Once the interaction patterns started
to repeat themselves, the data collection stage was deemed as completed.
All data were first collected and stored and then studied by the author of the thesis. This
was primarily done due to the risk of the material being removed or altered: The CC
web-site, wiki and audiovisual material are constantly updated and part of the iBiblio
archived mailing lists has been removed in Autumn 2006 and the author of the thesis
had to request a copy from the technical advisor of CC Corp, Mike Linksvayer.
The fifth group of data collected comprised of three short interviews conducted by the
author of the thesis. The first two were with Lawrence Lessig in May and June 2006 and
the third with James Boyle in June 2006. Objective of the interviews was to confirm
some of the findings of the analysis that has been conducted on the basis of the three
first groups of data. These were semi-structured interviews where four questions were
posed to each of the participants: (a) how did the CC project emerge and which are its
basic features (b) which is their response to the critique of the CC project (c) whether
the CC project is an associations/ regulation construction project (d) how do they view
the future of the CC project and their role in it. Two of the interviews were filmed and
one was tape recorded.
The first group of data (investigation of the ‘CC licenses’ mailing list) is the core data
set as it provides information regarding the process of the constitution of the CC
licences through a public consultation process where access is allowed in non-
discriminatory terms. The second (CC formal material) and third (Lessig’s Newsletters)
data sets provided background information regarding the CC project and allowed the
construction of a narrative regarding the origins and basic functions as portrayed by the
CC project. The fourth group of data (CC licences legal text) allowed an investigation
of the way of the operation of the CC licences, whereas the fifth group of data (CC legal
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text) allowed an investigation of the CC construction from the perspective of its
founders. In overall, we may see each of the five data sets providing different aspects of
the construction process and in that sense each one, in its own sense, constitutes a way
to follow the relevant CC actors.
5.2.2. Data Analysis
Objective of the analysis of the “cc licenses” mailing list was to follow the actors in the
construction of the CC licences and explore in detail the ways in which they constituted
the relevant associations that produced the formal regulatory instruments of the licences.
We tried both to follow the actors in the construction making process (Latour, 2005 p.
132), but also practically trace the construction of the network as a result of their (not so
transient) interactions (section 5.1). For that reason we identified three aspects of this
construction process.
The first aspect related to the patterns of participation to the constitution of the licences.
In that sense we were interested in seeing (a) what is the portion of the active
participants that are the most active, (b) in what degree they form the agenda for the
discussion and (c) what is the impact of their contribution. By assessing these three sets
of criteria we would be able to examine the degree to which there is an end-to-end
construction of associations as advocated by Lessig (Lessig, 2001b) and we have seen in
sections 4.4.2 , 4.4.3 and 4.5.
The second aspect of the analysis of the “cc licenses” mailing list related to kind of
themes appearing on the list. There were two reasons why we have investigated this
aspect of the mailing list: first, these data allowed to map the types of meaning-
associations that were constructed on the mailing list; and second, the results were used
for the assistance of the analysis regarding the operation of the licences in terms of
flows of work and rights as we have explained above in relation to the third group of
data.
The third aspect of the “cc licenses” mailing list constituted an analysis of the
interactions over the mailing list and aimed at their visual representation. This was an
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instrumental part in the analysis conducted in this thesis as it operated as bridge between
the first and second aspects of the “cc licenses” mailing list and allowed a better
understanding of the background narrative that was constructed through the use of the
first group of data. The interaction patterns analysis also constituted a pictorial
representation of the association construction efforts between the different actors
(Latour, 2005 p. 132) and provided us with a first picture of how the Commons in the
level of regulation (section 4.4.3) look like (see section 6.4.4. for the results of the
analysis).
The very first step in the analysis of the data was to actually carefully study all the
relevant postings in order to get a feeling of the overall character of the messages posted
over the “cc licenses” mailing list. The author of the thesis was familiar with the context
and content of a substantial part of the mailing list content participating to the CC
project since March 2004 as part of the CC England and Wales team and this experience
was particularly helpful for appreciating the way in which the project operated;
however, the detailed studying of the message of the early period of the CC project was
instructive for identifying a certain level of redundancy in the postings in the sense of
spam messages that were filtered out from the subsequent analysis.
We may see the population of any mailing list being divided in three categories: those
that are members of the mailing list but have made no posting, commonly known as
“lurkers” in the mailing list jargon, a second category that involves members that have
made at least one posting and in that sense they are classified as “active participants”
and finally a third category of members that are responsible for most of the messages
and the direction the overall discussion takes and are classified as “key participants”. In
our research we are interested only in active and key participants, whereas we have no
data concerning the lurkers. In this early period we identified 55 individual participants
and 30 individual spam senders whereas in the auxiliary period we have 11 individual
participants with no spam senders. The primary data sample comprises of 228 messages
(33 spam messages and 7 failed deliveries), whereas the auxiliary data set numbers 45
postings by participants of the list.
The investigation of the participation patterns was primarily done by enumerating the
various aspects of participation from the relevant messages collected from the “cc-
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licenses” mailing list and inputting all the relevant data in spreadsheet software (Open
Office Spreadsheet Calculator v.2.5) which was used to make the relevant calculations
and produce the necessary graphs.In order to investigate the way in which participation
is structured over the list we have decided to create a series of indicators that first set the
overall boundaries of participation, second focus on the participation patterns of
individual participant and finally compare the two in order to provide an overall view of
the situation.
The following measurements were made for the primary data set:
(m1.1) overall/ individual number of postings per month; (m1.2) average/ individual
postings per month; (m1.3) maximum and minimum number of postings per month;
(m1.4) overall number of participants per month; (m1.5) average number of participants
per month; (m1.6) maximum and minimum number of participants per month; (m1.7)
number of threads initiated per month; (m1.8) average thread depth per month; (m1.9)
maximum and minimum thread depth.
In the case of the auxiliary data set we needed to slightly amend measurements (m1.6)
to (m1.9) to the nature of the data since we only had to deal with a single thread.
However, as we will see in section 6.4.4 we have devised the notion of 'implicit thread'
in order to express thematic divisions within a single thread of great depth and thus
examine the degree to which the same kind of phenomena appear within threads in more
mature stages of the discussion development. Hence measurements (m1.6) to (m1.9)
refer to the auxiliary data set to implicit threads' depth.
In terms of the indicators of overall postings and initiated threads at a first stage we
have translated both posting and active members into percentages of the overall
population and then at a second stage we have juxtaposed the one with the other. In
terms of the indicators of persistence and average depth we have only turned the active
members into percentages of the overall population and then segmented the population
in six and seven parts accordingly to see how the top persistence and average depth
identified in the project are distributed amongst the various active participants.
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The indicators developed and assessed in all three approaches facilitate a first mapping
of the participation patterns in the cc licenses mailing list. We have tried not merely to
assess the participation in terms of postings (participation intensity) but in relation to
other indicators expressing their contribution to the formation and evolution of the
discussions. In that sense we sought to identify the degree to which the key participants
are also the ones that form the discussion in the sense of initiating the threads
(participation impact) and hence setting the main topics of discussion. We have also
used indicators to identify which are the participants that produce deep threads and
hence are the ones with the greatest impact to the overall discussion. Finally, we tried to
measure participation also in terms of time (participation persistence) by assessing their
presence on the list with at least one posting per month.
All these measurements and subsequent analysis produced a series of graphs expressing
the portion of the key participants in the overall population of the active participants as
well as the kind of participation (setting the agenda, impact of participation). Such
indicators allowed an exploration of how does the e2e model of Commons for
regulation we have seen in chapter four (section 4.4.3) operate in the case of the CC
project. In the presentation of the participation analysis results in section 6.4.1 we have
chosen to illustrate only the most representative cases of participation patterns from the
early “cc licenses” period in terms of distributions of participation in the overall
population (figures 6.3 to 6.5) and a pie chart (figure 6.6) of the participation shares of
different participants in the auxiliary period. These kinds of representation illustrate
who are the main actors that actually participate in the construction of the associations
that will produce the final CC set of licences.
The next stage of data analysis was to explore the primary data set in terms of the
themes appearing on the cc licenses mailing list. The grounded theory (Glaser and
Strauss, 1968; Strauss and Corbin, 1990) influences that have informed our analysis
have originally made the author of the thesis to use Atlas/ti as the software assisting in
the analysis of the relevant data. Atlas/ti has been developed specifically with the
grounded theory as its background (Muehr, 1991) and indeed allows a series of
functions particularly in relation to coding that are extremely powerful and useful for an
application of a grounded theory approach. We have, however, soon decided to opt out
from Atlas/t as it proved to be very cumbersome for the kind of data set we had, which
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was fairly limited and required a visual mode of representation and a quantitative type
of analysis AtlasTi could not offer. Hence, we decided to use spreadsheet software in
order to do the coding in successive layers that could be represented in the form of
columns and then be able to quantify the frequencies with which certain themes would
appear and the periods in which they appear more intensively. The use of generic type
software for the conducting of qualitative analysis is not new and has indeed been
suggested in the relevant literature (Richards and Richards, 1994) with the condition
that it serves the specific needs of the researcher as was the case of spreadsheet software
used in this thesis.
The analysis of the thematic representation was conducted in three successive stages. In
the first stage the threads appearing each month were input on the spreadsheet in a
linear fashion. This allowed us to have all threads per month and the formal
representation of the topics that have been suggested during each month of the project.
However, a first reading of the relevant postings revealed that the themes appearing
during the discussion of each of the threads were both of a more generic and a more
specific level. Hence, we conducted a first level of analysis that corresponded to the
Open coding phase in the grounded theory model (Glaser and Strauss, 1968; Strauss and
Corbin, 1990) where themes appearing in each thread were identified and then placed in
a column next to the thread column on the spreadsheet. After having completed the
collection of themes for all postings of the periods under study, we have placed them on
a separate spreadsheet and tried to compile a list of second level codes emerging out of
the repetition and appearance patterns of the first level codes. This stage corresponds to
the axial coding in the grounded theory approach and has led us to a series of 84 codes
which we regarded as the backbone of the issues represented in the mailing list
discussions. 14 of these backbone codes were further broken down in three successive
layers of more concrete codes: the first layer comprised of 67 new codes; eight of these
codes were again broken down into 17 more codes that constituted the second layer of
sub-codes; two of them were further analyzed into five final categories of 'atomic'
codes. The basic code backbone has been abstracted in 15 super-codes that we regarded
as a good first description of the basic thematic mapping on the list. In overall we ended
up with five layers of codes ranging from Layer I which are the most abstract ones to
Layer V which are the most specific ones. In the process of compiling the 84 backbone
codes of Layer II we also came across a series of Layer III and Layer V codes that led
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us to the adoption of a five layer structure so that we were able to have a complete
picture of the various levels of themes appearing on the cc mailing list.
Layer codes were divided in three categories: first codes relating to the CC licences (CC
licences operation, Commons Deed, Licence Options, Basic CC template, Disclaimers
and Notices, GPL/ Copyleft/ Open Source, New Licence Variation, Local Variations of
CC licences) which were the majority of the codes; second codes relating to the
workings of the CC as an organization or as a list (Announcement, List Operation
Issues, Technology, Statistics, Organizational Issues); and third broader Copyright
issues (Broader Copyright Issues). We have also created a separate code for clarity
(Clarity) that seemed to be a prominent issue cutting across the different categories of
themes.
Having constructed the 15 codes we considered as the most representative of the various
themes appearing on the “cc licenses” mailing list, we have revisited the open codes to
see the degree to which they could actually correspond to each other and assess whether
any amendments were required. This process of verification of the codes led to a new
list of 21 codes based on the original 15 codes but using some of the Layer II and Layer
III codes and also abstracting some of the codes of Layer I in order to describe more
general behavioral trends.
The updated list was again compared to the open coding list and produced a final
classification of 23 codes most accurately expressing the thematic representations
appearing on the list at the granularity most expressive of the strength of the
representation. In the process of producing the final list we broke down the
Organizational/ Operational Issues code on four sub-codes, two of them representing the
original classification from which it has derived (CC Organizational/ Technical issues
and solutions; Mailing list rules) and two new ones: (a) a 'Principles' code that seemed
of particular relevance as in the later stages of the CC licences mailing list the issue of
principles that should govern CC or the Free Software/ Content movement or
Copyright itself appears more frequently (b) a 'Linking with Free Software/ Content
organizations' code that expressed the need to explore the association of CC with other
related organizations. We have also rejected the CC licence Operation code as too vague
and being already more accurately represented by the individual Licence Elements or
the Basic licence template codes.
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Once the final classification of codes was made we returned to the original table of
threads per month and counted the occurrences of a theme per thread. Even if a theme
appeared in more than one backbone codes found in the thread we set as a boundary the
appearance of each final classification code only once in each thread. Following this
process of enumeration of final classification codes per thread on a monthly basis we
ended up with a comprehensive list of the code representations for the period under
study. Once this table was prepared we were able to identify the levels of representation
of the codes over the list. The complete table of the five layer analysis results is
presented in figure 5.1
Classification I Classification II Rejected Breaking Down Final Classification
Organizational/ Operational Organizational/
Issues Operational Issues Principles
CC Organizational/ CC Organizational/
Organizational technical issues - technical issues -
Issues solutions solutions
List Operation
Issues Mailing list Rules Mailing list Rules
Linking with other
Free Content/ Linking with other Free
Software Content/ Software
Organizations Organizations
Compatibility/ transition Compatibility/ transition
Clarity Clarity Clarity
Authorship/ moral rights Authorship/ moral rights
Commercial Commercial
CC licence
Operation CC Related CC Related
GPL/ Copyleft/
Open Source FLOSS Related FLOSS Related
Licence Options NC NC
SA SA
ND ND
BY BY
Basic CC
Template BASIC (Basic Template) BASIC (Basic Template)
Commons Deed CD (Commons Deed) CD (Commons Deed)
Broader Copyright CR Related (Copyright CR Related (Copyright
Issues related) related)
PD (Public Domain) PD (Public Domain)
CC Technology Technology Technology
Local variations of
CC licences Context (local/country) Context (local/country)
New Licences/
variation New Licences/ variation New Licences/ variation
Disclaimers/
Notices Disclaimers/ Notices Disclaimers/ Notices
Announcement Announcement Announcement
Statistics Metrics Metrics
Figure 5.1 Layer Analysis of the “cc licenses” mailing list thematic representation
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We have quantitatively analyzed the relevant data produced from the qualitative
analysis of the codes by following three classes of indicators: the first one sought to set
the boundaries of thematic representation on the list; the second indicator aimed at
identifying the way in which the most active themes appeared in time; and the third one
had as its purpose to map the distribution of theme participation over the whole range of
topics.
The identification of the active thematic units as expressed in the final classification
coding was to a great extend conducted in the stage of the qualitative analysis of the
data; however, the quantitative approach used the Overall Thematic fluctuation per
month' as the main indicator for outlining the boundaries of thematic representation in
the mailing list discussions as it expresses the total amount of all codes appearing per
month in the course of the relevant data set. This indicator provided the overall thematic
intensity per month.
For the identification of patterns of specific thematic representation occurring on the
mailing list we used the indicator of Thematic Appearance per month that was
calculated on the basis of a code appearance per month. Three variables were used for
this purpose: average, maximum and minimum appearance. This indicator was used in
order to identify specific thematic intensity per month. A second indicator also used to
identify thematic appearance was that of the monthly appearance of a theme which
expressed the number of months for which a theme appeared. The objective of such
indicator was to map specific thematic persistence in the course of the project.
The final set of indicators sought to identify distribution of population over the list in
relation to the indicators appearing in sets one and two. The first step was to identify the
range of thematic appearance by finding the maximum and minimum percentage of
appearance of a theme on the list. This was calculated on the basis of the sum of all
popularities of themes appearing on the list. The range of thematic appearance was
calculated to be between 0.27% and 8.44% and hence we decided to examine a range of
percentages between 0% and 10% with a unit pace of 2% for clarity reasons.
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The thematic representation analysis allows a tracing of the themes that are the most
popular on the “cc licenses” mailing list and as such it indicates both the issues of
controversy as well as the target of the association construction efforts by the active
participants of the mailing list. In the presentation of the thematic analysis results in
section 6.4.2 we provide only the two basic sets of results in the forms of two graphs:
one showing the popularity of the finally identified 23 themes (figure 6.7) and a second
illustrating distribution of popularity of themes (figure 6.8). The first of the two graphs
(figure 6.7) expresses the popularity of the various targets of construction or the degree
of controversy raised by different aspects of the CC project, whereas the second (figure
6.8) allows us to see whether there is a single theme that dominates the discussion or
there is an more balanced set of themes appearing over the “cc licenses” mailing list.
These themes as complemented by the content analysis of the relevant postings and the
postings used in the auxiliary period of v.3.0 of the CC licences are used in section 6.4.3
in order to examine the degree to which they provide an input in the legal text of the CC
licences. The analysis of section 6.4.3 focuses in particular on the issue of transparent
copies and Technical Protection Measures which is one of the dominant themes in the
CC v.3.0 licences discussions.
If the participation analysis provides the starting point of the construction effort, the
thematic representation analysis indicates the objective of the association construction
activity. It also informs the analysis of the licence operation. The following part of the
analysis that deals with the interaction patterns on the “cc licenses” mailing list
complements the analysis conducted up to this point and provides an actual visual
representation of the network of associations as created in action.
What the interaction patterns seek to show are the boundaries of the associations
assembling process and the way in which various heterogeneous contributions are
gathered together in order to produce a final result. Considering that the “cc license”
mailing list is the primary tool for the construction of a Commons, at least in accordance
to Lessig's ontology [as illustrated in section 6.2 and the relevant Lessig’s Newsletter
(Lessig, 2005h)] who was the founder and ideological driver of the CC project, then by
tracing the interaction patterns over the CC licenses mailing list we trace the formation
process of the Commons; and since the kind of Commons that is produced over the
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mailing list process is one of regulatory nature (section 4.4.3), i.e. the CC licences, it is
accurate to claim that by investigating the interactions we investigate the cultivation of
the regulatory commons.
In order to achieve our objective, and in accordance to section 5.1.1 where we explain
the linking between ANT and Lessig's work in the context of the CC project, we need to
follow the actors in the process of forming the CC licences. In particular, we followed
the formation of different threads using the month as the main time units, since this is
also the way in which they have been archived over the iBiblio lists.
We attempted a visual representation of the interactions trying to tie each message with
the one it was directly linked to. This is an important detail to clarify: a message may be
thematically relevant to multiple other messages on a mailing list, as the “cc licenses”
mailing list, that extends to some tens of hundreds of messages and for a period of about
four years. When tracing the linking following a particular thread we tried to locate the
specific messages a posting was explicitly referring to and accordingly illustrate the
relevant associations. Again we followed the references found in the postings
themselves trying to deviate as less as possible from the information discovered in the
data field itself.
In order to visually represent these interactions we used a series of diagrams, each
diagram representing a particular thread, for the whole period under study. The
diagrams comprised of boxes where we included the name of the participant and the
date of the posting while we also kept a complete reference to the posting as indicated in
section 5.2.1 regarding data collection. For the auxiliary data set which was of a
narrower scope we also included in the box a description of the main thematic pointers
of the posting (see e.g. figure 6.13), whereas for the more extensive primary data set we
constructed complete narratives which were stored in a special text file and in the
diagrams we only included the name of the author of the message and the year of
posting (e.g. figure 6.11). The link between the narrative and the diagrams was made
easy through the system of referencing that allowed the correspondence of boxes and
narratives through the referencing system.
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After the identification of the messages and pictorial representation of the way in which
they were linked with each other, we have actually drawn lines between the messages
indicating the way in which they associate with each other in the context of the single
thread. In the process of drawing these connections we noticed a series of instances that
have informed an improvement of our analytical methods: First, we noticed that a thread
could transform its topic in the sense that while the participants remain the same, the
topic may change for at least one time. In those cases we presented the threads the one
next to each other so as to make visibly clear the thematic transformations (see e.g.
figure 6.10). In the case of the auxiliary data set since for practical reasons such a
representation was not possible, we have chosen to use the green color to denote the
thematic change since there was only one formal thematic change occurring during the
period under study.
Second, because of the time unit of the month that we have opted to follow as a result of
the same classification made by the cc-licenses archiving software itself, we have
presented threads evolution in monthly units (see e.g. figure 6.1). However, in the cases
where the thread would extend for a period exceeding that of one month we would
always present the set of interactions at the month of the initiation of the interaction
with the interactions occurring in the following months also being represented but in red
color (see e.g. figure 6.15).
Third, we identified two types of links made in the posting messages: (a) explicit links
that normally quoted directly the messages they were referring to (see e.g. figure 6.14);
and (b) implicit links that though they were referring to a specific message, no verbatim
parts of the message appear in the body of the subsequent posting. We have represented
the former category of links with a straight line and the latter with a dashed line (see e.g.
figure 6.10).
The visual representation of the interactions over the “cc licenses” mailing list indicated
the way in which the association construction process is manifested and also constitutes
a first pictorial expression of the way in which the actual Commons in the level of
regulation appear. It constitutes an expression of this thesis strategy of following the
construction process and it provides a set of results that assist in the assessment of how
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the regulation construction process is manifested in the CC project. An indicative list of
interaction patterns may be found in appendix III
In summary, all three forms of analysis of the “cc licences” mailing list are used in
order to follow the actors of the CC project in different aspects of their effort to
construct associations. The first aspect of analysis (participation analysis) indicates who
participates, the degree to which she frames the discussion and the impact she has on the
discussion; the second aspect of analysis (thematic analysis) illustrates which are the
main issues of controversy or interest over the “cc licenses” mailing list, the areas of
native regulation represented on the mailing lists and as such the targets of construction;
and finally, the third aspect of the analysis (interaction analysis) visualizes the
interactions between the active participants over the “cc licences” mailing list and
allows the identification of the relevant participation patterns that is presented in section
6.4.4. The combination of all three forms of analysis in section 6.4.5 allows an
investigation of the terms under which the association construction takes place in the
case of the CC project and the way it contributes to the construction of the creative
commons.
As mentioned above the second data group drawing material from the formal rhetoric of
the CC project is used primarily in order to develop a background narrative that would
allow us to produce a coherent story regarding the basic ideological foundations and
means employed by the CC project in order to achieve its objectives. Once the relevant
material was collected, we produced seven pointers regarding CC’s world-view. These
findings are illustrated at the end of section 6.1.
The third group has been primarily used to complement the narrative and results
presented in section 6.1. In addition it was used in order to explicate the means
employed by the CC project in order to materialize the worldview identified in 6.1 and
is presented in section 6.2 of the thesis. The analysis conducted on the groups two and
three of the data aims at producing a coherent explanation of what the CC project is
about from the perspective of the CC project. By producing such form of narrative we
reenact the process of meaning construction aimed by the CC project and hence
materialize the approach of following the actors (Latour, 1987) in the association
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constitution process as described in sections 5.1.1 and 5.1.2. A summary of all features
of the CC project resulting from our analysis may be found in appendix II.
The third (Lessig’s twelve Newsletters) and fourth (licence legal text) groups of data
were used to conduct a single combined analysis aiming at explicating the operation of
the legal layer of the licences. The analysis separated the licence in two parts, one being
the basic template of the licence and a second comprising of the four basic licence
elements. This distinction was derived from the explication of Lessig’s Newsletters
[particularly (Lessig, 2005c; 2005j; 2005k; 2005l)] we have collected. After this
analytical distinction was made, we have assessed the four licence elements on the basis
of their popularity and content as explicated in the analysis of the “cc-licenses” mailing
list (see description of the analysis results in section 6.4.2). The assessment indicated
that the elements of Attribution and ShareAlike were the ones that presented most
interest to the participants and we further explored the content of the discussions in
order to identify the specific parts of these elements that were of interest. The content
analysis indicated that the participants were primarily interested in the way in which the
regulatory autonomy of the creator could be achieved.
The element of autonomy that seemed to be the most dominant in the “cc licenses”
discussion list related to the ability to of the creator to define the regulatory conditions
of the distribution of her work. In order to further map this element in the operation of
the CC licences, we have produced two schematics (see figures 6.1 and 6.2) tracing the
flow of work and licences in relation to the operation of the basic template and the
Share Alike element. In each of the two diagrams we sought to identify the way in
which the work and the relevant copyrights were linked to any author making an
original contribution in the trajectory of the work.
We used two scenarios: In the first scenario we explored the flow of the Work (W) and
the Licence (L) between five individuals (A, B, C, D, E) in the case of the operation of
the basic template (figure 6.1.) and the right to make verbatim copies of the work. The
objective of this exercise was literally to follow the way in which the relationship
between different users of the licence were constructed and as such visualize the
Network of associations produced in accordance to the operation of the licence or the
kind of network that the licence produced.
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In the second scenario we used a more complex case to explore the operation of the
Share Alike Licence Element: We explored the flow of the original work (W) and the
creation of a derivative work (DW) as a result of a CC ShareAlike licence between a
group of four individuals (A, B, C, D). After the derivative work was created we
explored the flow of the W, the DW and the licensing relationships. In particular we
identified licensing relationships with respect to the original work (W) which we name
L1 and licensing relationships with respect to the derivative work (DW) which we
named L2. The objective of this analysis was again to follow the actors in the
construction of their licensing associations as a result of the operations of the licence
that were the most popular in the “cc licenses” mailing list in accordance to our finding
in the analysis of the fourth group of data.
Once the diagrams and the relevant themes were identified, they were juxtaposed to
Lessig’s accounts of the operation of the relevant aspects of the licences as found in his
2005 series of the twelve Newsletters, and then presented in a coherent whole aiming at
pointing at the way in which the CC project constructs the regulatory autonomy of the
individual creator (section 6.3).
Having completed the construction of a background narrative and a first exploration of
the associations the CC licence are constructing through their operation we moved to
the analysis of the way in which constructions took place over the “cc licenses” mailing
list, which as we have explained in section 5.2.1 is the most popular CC mailing list and
the one over which the licence building activity takes place. The main bulk of the
analysis has focused on the data regarding participation (see results in section 6.4.1),
thematic representation (section 6.4.2) and interaction (section 6.4.4) over the “cc
licenses” mailing list.
The three interviews that constitute the fifth group of data were used to complement our
understanding of the whole construction processes by combining the elements produced
from the analysis of all other data groups and which feature in the discussion sections
7.2.3 and 7.2.4.
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5.3 Conclusion
This chapter has presented the overall research design of this thesis and the way it has
employed specific data collection and analysis techniques in order to achieve its
research objectives.
The research design is influenced by the Critical Legal Studies discipline and ANT
theory (section 5.1) and seeks to explicate the ways in which the CC licences are
produced as a result of an association constitution process. Lessig’s theoretical work, as
illustrated in chapter four, is related to some of the key ANT concepts in sections 5.1.1
and 5.1.2 and used in order to explain the reasons behind the choice of specific data
collection and analysis techniques. The thesis adopts a methodology aiming at following
the CC actors in the construction of the CC licences, which is viewed as a process of
association construction.
In order to follow the CC actors we mainly collect data from the discussions over the
“cc licenses” mailing list which is the CC mailing list used for the development of the
CC licences. These data are complemented with background information regarding the
origins and worldview of the CC project collected from the formal CC web-sites, the
legal text of the CC licences, a series of twelve Newsletters Lessig has publicly posted
in the end of 2005 and interviews the author of this thesis conducted with Lessig and
Boyle (section 5.2.1).
The analysis of the data may be divided in three broad categories (section 5.2.2): first
there is analysis that aims at the construction of a background narrative of the CC
project as constructed by itself, where data from all the above categories are used;
second there is an analysis of the operation of the CC licences seeking to trace the
construction of associations between the creator and other users of the material or other
secondary creators; and third there is an analysis of participation, thematic and
interaction patterns over the “cc licenses” mailing list. In this latter part we are able to
trace how native regulatory forms find their way into the text of the CC licences. The
interviews conducted by the author with Lessig and Boyle facilitate the discussion of
the analysis findings in chapter seven.
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The analysis of the “cc licenses” mailing list is the most important for the purposes of
this project as it allows a mapping and visual representation of the way in which the
Commons are constructed in the regulatory level. Since, the key idea supporting our
methodological approach is that of following the CC actors in the process of
constructing associations, the detailed tracing of who constitutes the relevant
constructions (participation patterns), which are the aimed objectives or controversy
points as well as the main native regulatory forms (thematic patterns) and how the
interactions are being made (interaction patterns) constitute the translation of such a
methodological philosophy into the specific analysis of the relevant data.
Accordingly, the second and third type of analysis conducted in this thesis also
contribute to the tracing of the relevant associations: the construction of the CC
narrative indicates the way in which the CC project aims at producing the constructed
image of the formal CC organization and licences, whereas the tracing of creator-user-
secondary creator associations explicates the associations produced by the CC licences.
All data analysis techniques presented in this chapter constitute the mechanisms which
produce the results of the investigation of the CC project featuring in the following
chapter and set the background for the discussion taking place in chapter seven.
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Chapter Six Presentation and Analysis of the Creative
Commons Project
6. Introduction
The objective of this chapter is to explore various aspects of the CC project and
examine the interrelationship between the autonomy of the creator and the cultivation of
the regulatory commons as the CC project evolves into time.
The chapter comprises of five sections. In the first one the CC world-view is presented
in terms of the instances of its creation, the assumptions it contains and the CC
associations with the concepts of Public Domain and the Commons. The second section
investigates the selected means for achieving the CC objectives and the origins of their
specific features. Section 6.3 deals with the structural elements of the licences and
particularly the way in which the autonomy of the creator is maintained and the way the
licence operation contributes to the cultivation of the Commons. The fourth session
deals with the interaction, thematic representation and participation patterns over the “cc
licenses” mailing list. The chapter concludes with a summing up of the findings of the
chapter and poses the issues that are to be further investigated in chapter seven.
6.1. The CC project and its worldview
While the objective of the Creative Commons project is quite clearly stated in the CC
home page as an effort to “[s]hare, reuse, and remix — legally” (Creative Commons,
2007a), what CC represents, its ideological foundations and the reasons behind the
choice of specific means for the implementation of its strategic goals is a far more
complicated affair.
A good starting point is the CC home page where we get a concise and purposefully
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uncontested image of its basic activities, the possibilities it creates and a first exposure
to its “freedom” connotations:
“Creative Commons provides free tools that let authors, scientists, artists, and
educators easily mark their creative work with the freedoms they want it to
carry. You can use CC to change your copyright terms from "All Rights
Reserved" to "Some Rights Reserved." We're a nonprofit organization.
Everything we do — including the software we create — is free.” (Creative
Commons, 2007a)
Nevertheless, few would deny the multiplicity of images the CC project conveys,
whether intentionally or not: It has been represented sometimes as a tool (Brown,
Paharia, Junell and Walker, 2002), sometimes as a movement (Brown, Junell, Paharia
and Walker, 2003), sometimes as an organization (Creative Commons, 2006b) and
sometimes simply as a way of preserving values that would otherwise be eradicated by
changes in the existing Copyright laws (Creative Commons, 2006g). In the 2006
iSummit, quite a few of the CC international affiliates, that is, national Creative
Commons project leads, have expressed their concern or even confusion regarding what
Creative Commons is or tries to be (Ford, Ito, Henckel, Keller, Lemos, Lessig, Medak
and Wales, 2006; Ahlert, 2006); academics like Elkin-Koren (2005; 2006a), Dussolier
(2006) or Klang (2006) have exercised heavy critique on CC's ideological fuzziness;
and practitioners and activists like Moeller (2006), Chance (2006a; 2006d), Hogge
(2006) and Berry (2006) have voiced their worries about what seemed to look like a
“Commons without Commonality” (Berry and Moss, 2005) (sections 2.2 to 2.9).
Exploring the identity of Creative Commons can be a complex and certainly not
straightforward expedition not least because of the protean transformations it has been
subjected to since its inception. The fact that by mid 2006 we have started seeing the
emergence of a “federation” (Lessig, 2005d) of organizations (iCommons), CC
divisions (Creative Commons International), projects (Science Commons and Ccmixter)
and movements (Free Culture) is indicative of a complex phenomenon that though
revolving around the CC licences cannot be exhausted in their exploration.
A good starting point for investigating Creative Commons is to start exploring the
instances that gave birth to its establishment.
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In October 2005, Creative Commons launched its first fund raising campaign. Being a
nonprofit charity according to US Inland Revenue Service (IRS) regulations, Creative
Commons needed to pass what is called a “public support test”. Though initially funded
by the John D. and Catherine T. MacArthur Foundation, the Hewlett Foundation and the
Omidyar Network (Creative Commons, 2006c), the US IRS required Creative
Commons to “demonstrate that [CC's] support comes from more than a few
foundations.” (Lessig, 2005i). In the face of such development, Lawrence Lessig, one
of its founding members, initiator of the project and chairman of the Board of Directors
of Creative Commons (Creative Commons, 2006j), has posted a series of emails to
those registered with the Creative Commons website “explaining what Creative
Commons is, and where we're going with it” (Lessig, 2005i).
In the first of the twelve emails that have been posted for this purpose, Lessig provides
the circumstances under which the Creative Commons project has been initiated:
“Creative Commons was conceived in a conversation I had with Eric Eldred. I
was representing Eric in his case challenging the United States Congress'
Copyright Term Extension Act. Eric was enthusiastic about the case, but not
optimistic about the results. Early on, he asked me whether there was a way that
we could translate the energy that was building around his case into something
positive. Not an attack on copyright, but a way of using copyright to support, in
effect, the public domain. I readily agreed, not so much because I had a plan, but
because, naive lawyer that I was, I thought we'd win the case, and Eric would
forget the dream. But nonetheless, long before the Supreme Court decided to
hear Eldred's plea, a bunch of us had put together the plan to build the Creative
Commons.” (Lessig, 2005i)
Glynn Moody in a series of articles on open content in mid 2006 (Moody, 2006a;
2006b; 2006c; 2006d) provides a similar account:
“It was Lessig who argued the Eldred vs. Ashcroft case in court – and lost, much
to his chagrin. A more positive outcome from this work was the creation of a
second, more ambitious, organization called Creative Commons, and the
drawing up of a series of formal open content licenses.” (Moody, 2006b)
Before the initiation of the Creative Commons project, Lessig as a member of staff at
the Berkman Centre for Internet and Society (Berkman, 2006) had created what at the
time was called “Copyright's Commons”. Traces of this initiative may be still found in
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the Berkman Centre for Law and Society website in the Open Law section where it is
referred to as a coalition against copyright extension:
“Support our fight for the public domain by joining Copyright's Commons, a
coalition against the copyright extension” (Open Law, 2003).
Following Moody's reference to Copyright's Commons (Moody, 2006b) and examining
the old Copyright's Commons site from the Internet Archive we get a clearer picture of
what the forerunner of Creative Commons was about.
The Copyright's Commons Home Page is titled “About Counter – Copyrights” and
features the CC symbol (Copyright's Commons, 1999). The first paragraph refers to the
mission and basic strategy of Counter – Copyrights:
“As an alternative to the exclusivity of copyright, the counter-copyright invites
others to use and build upon a creative work. By encouraging the widespread
dissemination of such works, the counter-copyright campaign fosters a rich
public domain.” (Copyright's Commons, 1999).
The next paragraph presents the basic mechanism through which Counter – Copyright
would work; this is indeed the crux of the Creative Commons idea:
“The idea surrounding the counter-copyright campaign is fairly easy to
understand. If you place the [cc] icon at the end of your work, you signal to
others that you are allowing them to use, modify, edit, adapt and redistribute the
work that you created.” (Copyright's Commons, 1999).
This may be read as a thin description of what would later become the Creative
Commons licensing project and would be described in far greater detail by Lessig in his
Creative Commons Newsletter series about seven years later (Lessig, 2005i).
The heuristic employed by Copyright's Commons is the same as the one used by
Creative Commons: signaling that the author willing fully allows certain uses of the
work creates a space “free” of regulations, and thus supports the Public Domain:
“Show your support for the public domain by marking your work with a [cc]
and a link to the Copyright's Commons web site.” (Copyright's Commons,
1999).
Note the slightly differentiated rhetoric of Copyright's Commons when compared to the
one of Creative Commons. Though Creative Commons has created a “public domain
dedication” the basic Creative Commons licences vocally are not about putting works in
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the public domain but rather about allowing the sharing, remixing and reusing of work.
The language used in the early Copyright's Commons website refers to the Public
Domain in a rather loose fashion similar to the way in which Lessig will be using it in
the early years of the CC project.
The Creative Commons project however has been much more careful with the use of the
term PD than its direct ancestors. In the Frequently Asked Questions wiki we find a
clear differentiation between what Public Domain is and what the Creative Commons
licences seek to achieve:
“Will works that use Creative Commons licenses be in the "public domain"? No,
because the licensor does not give up all rights to his or her work. The Creative
Commons licenses are only copyright licenses that enable you to control how
other people use your work. If you want to put your work in the public domain --
the realm of creative material unfettered by copyright law – you can use our
Public Domain Dedication. By dedicating your work to the public domain, you
are effectively relinquishing all copyright interests you may otherwise have in
the work. However, this waiver may not be valid outside of the US.” (Creative
Commons, 2006g)
In a similar way even the early Counter – Copyrights initiative, on which Copyright's
Commons was based, was not aiming at replacing copyright law:
“The counter-copyright is not a replacement for an actual copyright, rather it is a
signal that you as the creator are willing to share your work.” (Copyright's
Commons, 1999).
Copyright's Commons were aiming at the individual creator that would be willing to
allow others to use the work so that they may produce other creative works. Copyright's
Commons made explicit reference to Open Source and how it aspired to operate in a
similar way:
“The counter-copyright strips away the exclusivity that a copyright provides and
allows others to use your work as a source or a foundation for their own creative
ideas. The counter-copyright initiative is analogous to the idea of open source in
the software context. For a more thorough explanation of open source see the
following site: http://www.opensource.org/.” (Copyright's Commons, 1999).
This brief investigation of the instances of establishment of the CC project and its
forerunners is revealing of two trends: first there seems to be a transition from a vision
to enhance the Public Domain to one of allowing particular uses of material, namely
sharing, reusing and remixing; second, though such transition is particularly apparent in
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the clear differentiation between Public Domain and the operation of the CC licences
we find in the 2006 CC FAQ wiki, the idea of the means used to achieve the stated
objectives, that is, the use of licences to mark creative material, remain broadly
speaking the same.
The first thing to investigate is the way in which creativity is framed in the CC project.
In “Building on the Past” (Cone, 2003), one of the CC promotional films, the whole
concept is that new creative forms have their basis on existing ones. “Reticulum Rex”
(Brown, Junell, Paharia and Walker, 2003), another short film of the same kind, made
the same point by emphasizing the aspect of “standing on the shoulder of your peers”
slogan. Similar is the message in the “CC Brazil” movie (Passman, 2004), where Lessig
is the one making the relevant statement:
“For here is the idea which has become so hard to get my fellow Americans to
see: that creativity has always been about building on other people's creative
work” (Passman, 2004).
Lessig of course has extensively elaborated on the idea of creativity based on other
people's work in the last two books of his “The Future of Ideas” (Lessig, 2001b) and
“Free Culture” (Lessig, 2004d).
Such a model of creativity assumes that any restriction to the access to the creative
endeavor of the past generations obstructs innovative efforts. This is particularly true in
environments where collaboration occurs in an unrestricted way, as is the case of the
Internet. A more careful look into the conceptualization of the Commons and the Public
Domain in the CC project reveals two more interesting aspects of the whole issue: first,
that the Commons or the Public Domain are perceived in their regulatory dimension: In
“Get Creative” (Brown, Paharia, Junell and Walker, 2002), the Public Domain is
described as “the commons of information where nothing is owned and all is
permitted.” Second, besides the costs from the fact that not all creative material is free
for use and re-appropriation, there is a secondary cost from the fact that the rules of use
for copyrighted material are neither clear nor known in advance. This second-level type
of cost derives from the permission that a creator needs to obtain in order to use certain
material, the problems of identifying the rights holder or even defining whether a work
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is protected or not.
We see a presentation of these two problematic dimensions of the Copyright Law in an
almost identical form in the accounts of the US Copyright system reform of the 1980s
regarding the abolition of formalities for awarding Copyright protection, in the “Get
Creative” and “Reticulum Rex” films (Brown, Paharia, Junell and Walker, 2002;
Brown, Junell, Paharia and Walker, 2003) similarly to Lessig's “Free Culture” book
(Lessig, 2004d). Lessig's and CC's rhetoric coincide in the conclusion that by allowing
protection without formalities from the moment of creation of a work, a space that has
been in the past outside the realms of regulation is now burdened with additional
regulatory costs for the new creator.
A third dimension of the problem of making regulated uses that before the 1980s
amendment were “free” (as unregulated) relates to the incomplete internalization of
various Copyright notions by potential creators. If someone is to create material based
on other people's work she needs to know whether this material is unregulated or fits
under some kind of Fair Use doctrine. Nevertheless, this is not straightforward and
hence further costs deriving from the uncertainty of the legal treatment of secondary
uses of the work arise. Lessig describes the situation in great detail in his Free Culture
(Lessig, 2004d) work and then in his 2005 series of Newsletters (Lessig, 2005k).
An analysis by the author of this thesis of the first one year and half in the life of the CC
mailing list referring to the CC licences (section 5.2.2) reveals a similar trend: most of
the participants are not able to understand the boundaries of Fair Use. What is even
more interesting is that they also face severe problems with understanding what
constitutes a Compilation or a Derivative work for the purposes of various national
Copyright laws. In the periods of Copyright's history, when Copyright law has been the
law that involved only a limited segment of the population either as users or as direct
infringers, the issues of internalization of the law have not been tremendous. However,
in an environment where the costs of becoming a creator are minimal, the
internalization problems increase and the need for intermediaries, and hence more costs,
seems inevitable (section 3.2).
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This is a particularly important moment in the conceptualization of the Public Domain/
Commons in relation to Copyright law. CC is not against Copyright law as such; CC is
not objecting private property or the existence of rules governing the use of Copyrighted
material. This does not flow necessarily from its initial position that “creativity builds
on the past”; however, it emerges as a “second best” solution: if creativity rules are to
exist, at least they need to be clear and known in advance. The critique of the classic
Copyright “all rights reserved approach” by the CC project is indicative of this position.
The “Creativity Builds on the Past” film is expressive of this moment of transition from
the first (no rules) to the second (clear rules) position: The movie starts with four kids
appearing in reverse motion whereas a voice reads the title of the movie: “Creativity
always builds on the past”. (Cone, 2003) Then the picture of a police officer appears:
“but sometimes the law can get in the way”. A person being arrested is presented while
another phrase pops up: “Copyright law restricts your access to the past and restricts
other people's access to your work”. (Cone, 2003)
The more militant approach of “Creativity builds on the Past”, made by an independent
producer like Cone ( 2006), is contrasted to the milder expression of the Copyright
problematic in the “Get Creative” film made by the CC Corp.: in the latter, the problem
is not framed in terms of a problematic existing regulatory framework (i.e. Copyright
law). Instead, the problems is presented as one related to non-creative middlemen
obstructing the smooth operation of Copyright law: “Bottom line: Big C [Copyright] is
out of the Job; the middlemen are not” (Brown, Paharia, Junell and Walker, 2002).
The problem is thus re-framed not as a problem of refusing regulation but rather as a
problem of reducing the externalities that increase the cost for creators to use pre-
existing works even if the latter’s creators would not object to such use. The objective
of the CC project is accordingly re-phrased not as a Public Domain cause but rather as a
Copyright rationalization project: “to bring some sense to the copyright debate; to
partner with the big C to clarify the rules of creativity; to help authors and artists to
build a body of free culture they can draw from in return.” (Brown, Junell, Paharia and
Walker, 2003). From the costs identified above, it is primarily the second (clarity of
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rules) and third types (easily getting permission for secondary uses of a work) of costs
that are addressed by the CC project.
The operation of Creative Commons as a “system” that patches the existing Copyright
“system” is found in the CC FAQ wiki:
“Creative Commons is a new system, built within current copyright law, that
allows you to share your creations with others and use music, movies, images,
and text online that's been marked with a Creative Commons license. ” (Creative
Commons, 2006d)
This transition of emphasis in the Creative Commons project from one enhancing the
Public Domain to one eradicating negative externalities is accompanied by an
increasing emphasis on the autonomy of the creator. This seems to be the next step in
the effort to effect a legal dis-intermediation as the main strategy for reducing creative
costs: if much of the creative activity is hindered by the existence of murky regulations
that require clarification by legal intermediaries, then the way to solve the problem is by
allowing the artist to take law in her hands (Cone, 2003).
This shift of emphasis from the abolition of rules to the actual handing in of the rule-
making and rule-choosing process to the artist is confirmed by the themes appearing on
the “cc licenses” mailing list in the first one year and half in the life of the CC project
(see section 6.4.2). The participants are only marginally interested in fully abolishing
Copyright Law. Even in relation to the Public Domain their focus is on establishing
rules of identification, marking and preservation of the material that belongs to the
Public Domain so that it may be freely used and is not privatized. It is not the absence
of rules that is advocated but rather it is a different type of rules that is sought: these are
rules that mainly have to do with allowing the re-use, sharing and remix of material and
its protection from the fencing of material rather than the control and prohibition of its
use.
Creative Commons has thus a very special relationship with the development of
regulation: it is primarily a project about creative rule making or at least a project
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seeking to encourage direct rule making by the creators themselves. Perhaps the best
way to understand the conceptualization of the role regulations are playing and should
be playing in relation to creative activity over the Internet is provided by the treatment
of the concept of Fair Use by the Creative Commons. The fundamental presuppositions
of CC in relation to Fair Use are found in Lessig's series of Newsletters in late 2005:
“No word is more used in debates about copyright with less understanding.” (Lessig,
2005k) Lessig puts the concept of Fair Use or “Fair Dealing” next to two more
concepts, these of Free and Regulated uses:
“The law recognizes three kinds of "uses" of copyrighted works:
Free uses (uses that don't trigger the law of copyright, such as reading a physical
book);
Regulated uses (uses that do trigger the law of copyright, such as republishing a
book;
Fair uses (uses that trigger the law of copyright, but which are nonetheless free
because the law deems them "fair" — such as copying words from a book in a
review of the book).” (Lessig, 2005k)
This trichotomy is of particular importance for appreciating where the Creative
Commons licences are positioned and what their role is. Lessig after having referred to
these three categories of uses of works, he emphasizes the shrinking of the Free or
unregulated uses in favor of the Regulated uses. He explains the reason of the boundary
shifting between categories one and two in a rather simple way:
“Digital technologies are changing the balance between these three kinds of
uses. As life moves online, "free uses" shrink. Because every act on a digital
network produces a copy, and "copies" trigger copyright law, there are vastly
fewer "free uses" in digital space than in analog space.” (Lessig, 2005k)
With this description Lessig presents his conceptualization of the term Freedom or Free:
it is expressed in the form of the absence of rules someone has to abide to.
This change of boundaries has a direct impact on the importance of Fair Use provisions.
In order to perform acts that in the analogue world would be classified as non-regulated
or free, in the sense of not requiring any permission, you would need to employ some
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sort of Fair Use defense.
Unlike many of the critics to this regulatory shift calling for a re-adjustment of the
rights in the legislative level, Lessig is more interested in a solution to the problem at a
contractual level. Lessig's position is not ideologically against state intervention in the
form of legislative change. However, this is a step that is to come in a later stage of the
fight for more Copyright freedoms and only after social momentum has been achieved
through the use of licences such as the Creative Commons ones.
CC licences are primarily instruments for increasing this “free” or “unregulated” space,
as a result not of a top-down regulatory intervention but rather as a result of the willful
action of the creator herself. This is an exceptionally important point: it is the author
that chooses to actually allow the unregulated use of her work and its scope. This is why
prominent creators from different realms of creative activity (such as O'Reilly or
Gilberto Gil) have proposed the provision of different licences allowing the
establishment of different freedoms. It is also the reason why the rest of the creators
may choose between more than one licence and hence freedoms for how their works
should be released. It is finally the reason why the licences and the freedoms they are
respectively incorporating are in the center of fierce debates over the various mailing
lists of the Creative Commons organizations.
The operation of the CC licences, whichever version of them, is then to create a realm
of free uses in the sense that the creator decides that for a certain set of freedoms that
are incorporated in the chosen licence, no permission will be needed.
The construct of the “Fair Use Plus” (Lessig, 2005k) provisions that Lessig seeks to
establish through the CC licences is an extension of the Fair Uses of a creative work and
is in one sense broader and on another sense narrower compared to classic Fair Use.
It is wider than the law imposed Fair Use provisions in the sense that they provide to the
creative user of the material many more rights compared to the ones that the classic Fair
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Use provisions provide. For instance, the creative user is able to create derivative works
or to freely make verbatim copies of the work. At the same time it is narrower in the
sense that such permission is not part of the law but rather the result of the autonomy of
the individual creator to allow such uses. The fact that Fair Use Plus provisions are
effected through a licensing scheme and not a state law is an expression of this narrower
character of the CC project.
The Creative Commons world-view may be summarized at this stage in the following
series of points:
(a) creativity builds on the past, in the sense of requiring other creative works in order to
produce new ones
(b) copyright imposes costs for the use of this past creative material. There are direct
costs deriving form of imposition of regulations for the use of the works and indirect
costs from the lack of clarity regarding these rules
(c) after the abolition of formalities for acquiring Copyright the default state of a
creative work is to be falling under a regulatory domain. Consequently the regulatory
costs are increased, since it is not always clear under which terms the work may be used
or who the author is. As a matter of fact the default is that the work should not be used.
(d) the costs are intensified in on-line environments for two reasons: first because
creative activity over the Internet is increasingly based on the use or remaking of
existing material; second, because most uses of material in an on-line environment
account to copying and are as such regulated with all the cost implications mentioned in
the previous points.
(e) the costs from the imposition of rules require specialized legal services provided by
intermediaries that increase the cost of production both for the primary and secondary
creators. Primary creators do not know how to best manage their Copyrighted works
and secondary creators do not know which works they are entitled to use.
(f) Creative Commons seeks to solve the problems related with the operation of rules by
reducing the costs arising from their operation. This is done not by seeking to abolish
the rules altogether but rather by providing the tools to the creators to allow a set of
freedoms (i.e. lack of restrictions) to be attached to their works. Objective of such a
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heuristic is to minimize both primary and secondary costs: primary costs because certain
uses are now permitted through the licences and no further negotiations are required;
secondary costs, because the work is accordingly clearly marked and no specialized
intermediaries are required.
(g) The Creative Commons focuses on the creator and primarily seeks to increase her
autonomy in choosing the ways in which to make her work available in accordance to
creative practices that encourage the secondary use of the creative work.
6.2 Creative Regulation: means for achieving the objectives of
the CC project
The Creative Commons world view provides a first basis for understanding the reasons
behind the choice of the licences as the preferred means for achieving its objectives.
This understanding may be supplemented with four auxiliary perspectives: an
ideological one related to Lessig's view of regulation on Cyberspace; a collective action
perspective as described in Lessig's work on the regulation of social meaning (Lessig,
1995c; 1996b); the actual responses by the competent U.S. regulatory authorities; and
the existing open licensing practices as a form of a factual precedent of dealing with
similar problems.
Lessig has been a vocal advocate of less regulation on the Internet long before he got
involved with Copyright issues. Academically in the late 1990s he had identified the
importance of Open Source as a model of governance for the Internet (Lessig, 1996d)
(Lessig, 1999c). In chapter four referring to Lessig's theoretical work we have
characterized his approach as one of cyber-libertarian realism (section 4.4.2). Besides
his theoretical work that advocates the autonomy of the individual and sees regulation
being only possible as an expression of such autonomy, Lessig has been involved in the
political process of Internet Governance. He has been one of the North America
Candidates for ICANN in 2000 and though he never succeeded in such a venture, he
expressed his concerns about the Intellectual Property related policies of ICANN
together with his broader concern for Internet over-regulation and the lack of
legitimization of technological regulation (Center for Democracy And Technology,
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2000) (Berkman Centre, 2000).
Lessig's political activity in the framework of ICANN in the late 1990s underlines his
stance as an advocate of thin regulation, the autonomy of the creator and the respect to
private property. The choice of licensing, that is, an instrument emphasizing the
contractual autonomy and proprietary rights of the individual creator is expressive of his
political and ideological views. In overall, all three values (thin regulation, autonomy of
the creator and respect for private property) are present in the CC licences and are
particularly clearly expressed in the kind of freedoms contained in their basic template.
This political position may be complemented by another more theoretical concern
Lessig has expressed in his mid 1990s work which relates to the costs of effecting
institutional change. In his “Regulation of Social Meaning” (Lessig, 1995c) Lessig
assumes that changing the associations that make up a specific institution, such as
Copyright Law, entails a certain cost. Even non efficient institutions will continue to
exist as a result of the inertia produced by the associations they are comprised of
(section 4.1). The way to effect change for Lessig is a lengthy process that requires the
deconstruction of the existing associations and the establishment of new ones. A direct
intervention in the legislative level (e.g. through legislative amendment) was not really
possible because of the extremely high costs it would entail. The failure of Lessig's
involvement in the Eldred case (Lessig, 2004c) has also been interpreted as an
indication of the costs of effecting change through the existing institutional system. The
choice of an alternative path is an expression of such an understanding of the way in
which institutional change may be instrumented. As indicated above this sentiment of
regulatory revision rather than reform is also apparent in the “cc licenses” mailing list
where the majority of comments are not for the abolition but rather the re-construction
and re-appropriation of creativity rules.
Even the response Creative Commons has received from the U.S. Copyright Office is
revealing of the need for innovation in the regulatory means employed for the
governance of creativity. When Lessig addressed the U.S. Copyright Office highlighting
the creativity costs arising from the way in which Copyright operates the response was
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that there was no service of supporting a series of unregulated uses. Brown referring to
the incident in the “Get Creative” film mentions that when the question was posed to the
U.S. Copyright Office the response CC got was that “we don't provide that service. Get
creative. So, we got creative.” (Brown, Paharia, Junell and Walker, 2002)
However, also undisputed is the great influence the Free Software Foundation and the
Free Software movement have exercised on the choice of free public licences as the
preferred regulatory instrument by Creative Commons: As Lessig explains in his “CC in
Review”:
“We stole the basic idea from the Free Software Foundation -- give away free
copyright licenses. (...) The idea (again, stolen from the FSF) was to produce
copyright licenses that artists, authors, educators, and researchers could use to
announce to the world the freedoms that they want their creative work to carry.
If the default rule of copyright is "all rights reserved," the express meaning of a
Creative Commons license is that only "some rights [are] reserved." For
example, copyright law gives the copyright holder the exclusive right to make
"copies" of his or her work. A Creative Commons license could, in effect,
announce that this exclusive right was given to the public.” (Lessig, 2005i)
Though Lessig as the founder of the CC explicitly states the FSF as the primary source
of inspiration for the CC project and a similar statement is made in the Copyright's
Commons introductory web page, CC was not the first open content project to be
inspired by Richard Stallman’s work. A brief account of open content movements
preceding CC is illustrative of their objectives and the way in which they relate both to
CC and the Free Software movement.
Moody notes that Wiley (creator of the Open Publication Licences) and Stallman
(creator of the General Public Licence) have worked together in an attempt to modify
the GNU GPL for content before the latter has opted for a termination of their
collaboration. Interestingly Wiley has identified the principles underlying Raymond’s
work regarding the mode of production in open environments as the driving principles
for his open content licences. Moody quotes the relevant passage (Moody, 2006b):
“OpenContent advocates adoption of the principles Eric S. Raymond outlines in
his essay "The Cathedral and the Bazaar" for use in the development of Content.
(…) The Bazaar model for Content development will bring these same benefits
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to online instructional content; namely the creativity, expertise, and problem-
solving power of a potentially infinite team of instructional designers and subject
matter experts. A development effort of this kind will fill the Internet with high
quality, well-maintained, frequently updated Content. (In contrast, when was the
last time you updated your lecture notes?)” (Wiley, 1999)
The Open Publication Licences (OPL) were produced after some relevant input has
been provided by other prominent figures in of the Open Source movement like
publisher Tim O’ Reilly and Andy Oram. Tim O’ Reilly has been later involved in the
development of the Creative Commons licences; Andy Oram is an editor at O’Reilly
Media since 1992 with a focus on open source, peer-to-peer and the effects of
technology on society (Oram, 2006). O'Reilly as a publisher has been an advocate of
Creative Commons and also the one responsible for the Founding Fathers licence as the
“Reticulum Rex” film explains:
“All while you build the commons out in whole new directions, in ways we
never anticipated, High-tech publisher Tim O'Reilly helped us create the
Founder's Copyright”. (Brown, Junell, Paharia and Walker, 2003)
The narrator in the same movie explains that in the case of “Founders’ Copyright” the
work is protected for fourteen years under traditional copyright and then moves to “the
public pastures”, which are represented with a cow eating grass from these public
pastures while the CC sun is shinning. (Brown, Junell, Paharia and Walker, 2003)
While the idea of open content licences is first seen in the case of the OPL project, the
idea of establishing a Commons of content has its roots in the ibiblio server and the
project Gutenberg. Ibiblo mailing lists are rather familiar to CC, as most Creative
Commons discussions are taking place over the ibiblio mailing lists. However, ibiblio as
an organization has a longer history and role in the development and hosting of open/
free source and content. As the ibiblio FAQ describes it:
“ibiblio is a diverse and expansive collection of information on the Internet,
created and maintained by the public, for the public. It is the ultimate collection
of freely available information, the future of Internet librarianship, and a
collaboration between the former MetaLab.unc.edu (formerly known as
SunSITE.unc.edu) and the Center for Public Domain.” (ibiblio, 2006)
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Moody provides some further interesting information about the role ibiblio has played
in the arena of open content:
“In 1992, SunSITE was launched there [i.e. University of North Carolina],
designed as "a central repository for a collection of public-domain software,
shareware and other electronic material such as research articles and electronic
images" according to the press release of the time. SunSITE became iBiblio.org
in 2000 (after briefly turning into MetaLab in 1998), and received a $4 million
grant from the Center for the Public Domain, set up by Red Hat co-founders Bob
Young and Marc Ewing. Over time, iBiblio became Project Gutenberg's official
host and primary distribution site.” (Moody, 2006d)
A number of interesting points come out of this passage. First, that ibiblio has played an
active and important role in the establishment of Free/ Open source –like development
settings, open content in particular. Moody in the same article (Moody, 2006d) points
out that SunSITE and later ibiblio were hosting two of the most important original open
content projects, the Linux Documentation Project (LDP) and the Gutenberg project.
ibiblio provided the original infrastructure for these early open content projects. Second,
the ibiblio project has been supported by the Centre for the Public Domain that also
funded the early stages of the Creative Commons project. As a matter of fact the latest
versions of the Center for the Public Domain site before it shut down in the 2005
contained a logo with the same look and feel as the ibiblio logo (ibiblio, 2006) (Center
for the public domain, 2005). Ibiblio is currently hosting the site of iCommons as well
as the majority of the Creative Commons – related discussion lists (iCommons,
2006a)(Creative Commons, 2006i)
In Project Gutenberg we may trace the roots of the open content movement and, as
mentioned above, it was hosted at SunSITE and then ibiblio similarly to much of the
CC organization (Hart, 2004).
Moody in an excellent account of the history of open content, provides the basics of the
Gutenberg Project:
“The roots of this open content movement, as it came to be called, go back to
before the Internet existed, and when even computers were relatively rare beasts.
In 1971, the year Richard Stallman joined the MIT AI Lab, Michael Hart was
given an operator's account on a Xerox Sigma V mainframe at the University of
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Illinois. Since he estimated this computer time had a nominal worth of $100
million, he felt he had an obligation to repay this generosity by using it to create
something of comparable and lasting value. His solution was to type in the US
Declaration of Independence, roughly 5K of ASCII, and to attempt to send it to
everyone on ARPANET (fortunately, this trailblazing attempt at spam failed).
His insight was that once turned from analogue to digital form, a book could be
reproduced endlessly for almost zero additional cost – what Hart termed
"Replicator Technology". By converting printed texts into e-texts, he was able to
create something whose potential aggregate value far exceeded even the heady
figure he put on the computing time he used to generate it.” (Moody, 2006d)
The idea of a digital repository as the primary way to support the Public Domain is also
found in the pre-history of the Creative Commons project, when Lessig was envisaging
the creation of a centralized repository in the form of an Intellectual Property
Conservancy. This information provided by Lessig himself and Boyle in the Beijing
(Lessig, 2006e) and Rio (Boyle, 2006) interviews respectively conducted by the author
of this thesis is also confirmed by various early CC texts found in the CC website. The
potential project of the central repository that was never materialized had the name
“Constitutional Commons” that preceded the Counter Copyrights project and seems to
be very much influenced by the Project Gutenberg idea. As we have indicated in the
first section of this chapter and is also confirmed by Boyle, the idea of the central
repository was soon to be abandoned in favor of a system of reducing the regulatory
costs through legal means, that is, the CC licences.
Moody explores the commonalities between Richard Stallman and Michael Hart in
conjunction with the similarities between the Free Software GNU project and Project
Gutenberg. Regarding similarities, first, the Replicator idea seems to be based on the
same idea as that of free software, i.e. that there is the possibility of endless copying
with almost zero marginal cost. Second, both Richard Stallman and Michael Hart were
exceptionally dedicated to their projects believing they could make a difference though
in the outset of their efforts they have been pretty much alone in their work. Third, both
of them managed to realize the potentials of their projects only once they made it
available on the internet and managed to organize a distributed reproduction of their
work. Moody gives a good description of the role distributed production has played in
the taking off of the movement and the contribution of early titles to the success of the
open content movement in the following passage:
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“Both, too, were aided enormously as the Internet grew and spread, since it
allowed the two projects to adopt a distributed approach for their work. In the
case of Project Gutenberg, this was formalized with the foundation of the
Distributed Proofreaders team in October 2000; since then - and thanks in part to
a Slashdotting in November 2002 - hundreds of books are being turned into
ebooks every month. Moreover, just as free software paid back the debt by
creating programs that pushed Internet adoption to even higher levels, so Project
Gutenberg returned the compliment by making key early titles like "Zen and the
Art of the Internet" (June 1992) and "The Hitchhikers Guide to the Internet"
(September 1992) available to help new Internet users find their way around.”
(Moody, 2006d)
Interestingly the model of distributed production in the case of the Creative Commons
was applied mainly in the production of the licences. This is where the iBiblio lists have
been employed and it is this distributed form of licensing production that has driven the
development of the project up to now.
Moody also notes some important differences between the GNU and Gutenberg
projects. Hart was driven by the principle of creating a huge permanent store of human
knowledge, whereas Stallman was motivated by his commitment to spread his idea of
freedom. The issue of Freedom is also prominent for Hart and the language he uses is
reminiscent of Stallman’s vocabulary. However, Hart’s project aims at both types of
Freedom. Juxtapose the following passages:
“`Free software'' is a matter of liberty, not price. To understand the concept, you
should think of ``free'' as in ``free speech,'' not as in ``free beer.''” (Free Software
Foundation, 2004)
Whereas Stallman talks of Free as in Free Speech vs. Free as in Free Beer, Hart has as
an objective to provide both types of freedom. Moody (Moody, 2006d) quoting the
Gutenberg Project website provides the following section:
"The word free in the English language does not distinguish between free of
charge and freedom. .... Fortunately almost all Project Gutenberg ebooks are free
of charge and free as in freedom." (Project Gutenberg, 2006).
In the Creative Commons project we may identify elements from all the above projects,
but with one big difference: the visionary behind Creative Common, Lawrence Lessig,
has identified the importance of collaborative production since the early stages of the
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Creative Commons project. This is apparent in the forerunners of CC like the
Copyright’s Commons and the Open Law project.
Copyright’s Commons, which, as we have seen, has been the direct ancestor of the
Creative Commons project, has been part of the Open Law project, which is described
as follows:
“Openlaw is an experiment in crafting legal argument in an open forum. With
your assistance, we will develop arguments, draft pleadings, and edit briefs in
public, online. Non-lawyers and lawyers alike are invited to join the process by
adding thoughts to the "brainstorm" outlines, drafting and commenting on drafts
in progress, and suggesting reference sources.” (Open Law, 2003)
The same principles of distributed production that have been driving the development of
open source software have also been the foundation of the Open Law project. As the
previous passage indicates the distinction between experts and non-experts is gradually
extinct in such an environment.
The following extract from the Open Law project makes explicit the link between the
open source model and the production of open legal documents:
“Building on the model of open source software, we are working from the
hypothesis that an open development process best harnesses the distributed
resources of the Internet community. By using the Internet, we hope to enable
the public interest to speak as loudly as the interests of corporations. Openlaw is
therefore a large project built through the coordinated effort of many small (and
not so small) contributions.” (Open Law, 2003)
The same principles were transported in the Creative Commons project in relation to the
production of the licences, whereas principles from other previous projects may be
identified in other parts of the project. For instance, the principle of more than one
licences or the involvement of field experts is drawn from the OPL and the idea of free
public licences from the Free Software movement.
More than anything else, the Creative Commons project seems to be providing the
infrastructure not merely for creating some more free culture but also for sustaining a
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debate on what constitutes freedom in different contexts. As Lessig puts it in his “CC in
Review” series:
“what’s needed is an informed debate among creators about what freedoms they
need. We hope to encourage this debate. But in the meantime, we’ll continue to
guide ourselves based upon the values that the relevant communities have
identified.” (Lessig, 2005h)
The existence of more than one licence is expressive of the Creative Commons stance of
non-essentialism regarding the various freedoms to be contained in each licence and has
its roots in the OPL model of licensing.
As mentioned above, the OPL came in more than one version. As a matter of fact, OPL
came in four versions and tried to deal with the issue of derivative works and the
formats in which they may have been used. The variations of the OPL gave an
indication of how the CC licences would later work but did not make life particularly
easy for those willing to use them. These were all licences introducing the principles of
open production in content, they were produced as a result of the interaction between
the relevant community and the person that first conceptualized them and finally they
were provided in more than one versions so that the users (both producers and
consumers of content) would be able to choose the ones most appropriate to their needs.
Lessig shows the kind of interdependence between the author and the CC licences in the
first of his “CC in Review” emails:
“Which freedoms the licenses offer is determined both by us (deciding which
freedoms are important to secure through CC licenses) and by the creator who
selects from the options we make available on our website.” (Lessig, 2005i)
Precisely because the issue of core values and freedoms contained in the CC licences
has been such an important one, Lessig has devoted a special email in the “CC in
Review” series explaining the nature of the different needs in different domains and the
related Creative Commons position:
“Our view is that the necessary freedoms in different domains of creativity are
not necessarily the same. That music could be different from software, software
different from film. And as we have done throughout this project, we have asked
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leaders in different fields who share the values of freedom to help us understand
what values are important within those specific fields. Gil and Negativland know
something about music. So when they say that the freedom to remix is critical
even if the freedom to copy is not, it would take a great deal to persuade us they
are wrong.” (Lessig, 2005h)
The difference between Creative Commons and Richard Stallman (interestingly Lessig
refers to a disagreement with Richard Stallman rather than referring to the Free
Software Foundation) for Lessig is not one of between pragmatism and ideology: “It is
instead a different conception of value.” (Lessig, 2005h) For Lessig in different contexts
there are different values and the communities in these contexts should be able to define
these values in themselves.
The exploration of the origins of the various features comprising the CC licences
complements the CC world-view presented in the previous section. It also operates as a
genealogy of the overall characteristics of the project. Two of these aspects need to be
highlighted at this stage: first, that the CC project does not opt for the creation of a
centralized content repository in the pattern of Project Gutenberg but rather chooses to
focus on the creation of the regulatory conditions that will allow particular creative
secondary uses in accordance to the needs of specific creative communities; and second,
that this process leads to the choice of a strategy focusing on the provision of flexible
regulatory tools so that the creator may choose herself and without intermediaries the
regulatory means governing the ways of making available her works.
It is in these two aspects of the Creative Commons project that the regulatory autonomy
of the creator as a primary principle starts emerging; and it is this autonomy that we
seek to further explore, particularly in relation to the establishment of a Commons in the
following section investigating the operation of the basic template and Licence
Elements of the CC licences.
6.3 Analyzing the operation of the CC licences
All Creative Commons licences comprise primarily of two parts, one that is a kind of a
template that –at least in the basic six variations of the licences- remains stable and is
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referred to by Lessig as the “basic template” of the licences (Lessig, 2005i); and a
second one that contains combinations of three variable sets of provisions that in the
Creative Commons licences are referred to with the term “Licence Elements”.
The basic template of the CC licences awards to the licensee the following four
freedoms:
“(i) to copy the work, (ii) to distribute the work, (iii) to display or publicly
perform the work, and (iv) to make a digital public performance of the work (i.e.
webcasting)” (Lessig, 2005i)
All the rights contained in the basic template of the CC licences are normally found in
section 3 of the CC licences. It is helpful to approach these freedoms from a perspective
that allows an understanding of their rationale. Such rationale is provided by Lessig in
his Newsletter series and relates to the way in which creative material is used over the
Internet:
“(...) in cyberspace, there's no way to "use" a work without simultaneously
making a "copy." In principle, and again, subject to fair use, any use of a work in
cyberspace could be said to require permission first. And it is that feature (or
bug, depending upon your perspective) that was the hook we used to get
Creative Commons going.” (Lessig, 2005i)
According to Lessig, the CC licences are there to lighten the burden of regulation in an
environment where for each use permission is required. The objective is to return to a
regulatory situation similar to the one of the analogue era, where permissions for a
series of uses were not required:
“(…) for most of our history, the burdens imposed by copyright on other
creators, and upon the culture generally, were slight. And there was a great deal
of creative work that could happen free of the regulation of the law. Copyright
was important to cultural development, but marginal. It regulated certain
activities significantly, but left most of us free of copyright's control.” (Lessig,
2005j)
As demonstrated with his ICANN involvement (section 6.2), Lessig has always been in
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favor of less regulated environments on the Internet.
The freedoms contained in the CC basic template shall thus be viewed as an effort to
build a less regulated landscape for the use of culture and creativity. Surprising, the
means for reducing the regulation is a legal instrument, the licence. This
counterintuitive instrument has been chosen as Lessig points out “[n]ot because we
believe people ought to be forced to share” (Lessig, 2005j). Instead, precisely because
the copyright owners should have a choice of how to deal with their property, and
because there is a number of reasons why someone may want to encourage the flow of
her work, this is the reason why the CC licences have emerged.
Another reason behind the choice of these four basic freedoms as the template for CC
licences is related to what Lessig presents as the character of the Internet, at least when
it was built. We need to stress out that Lessig in other more academic works of his has
opposed the image of the Internet as a monolithic and unalterable entity. Since the late
1990s he has warned against the shift from a free to a zoned Internet and in the chapter
devoted to Lessig in this thesis we have extensively referred to his relevant works
(Lessig, 1999b; 1999d; 1999f; 1999g; 2000a; 2001b). For this section, however, I need
to reiterate to one of his arguments concerning the values in the Internet when it was
firstly built, which refers to the value of interoperability as one of the key Internet
principles:
“Interoperability. Perhaps the most important thing that the Internet has given us
is a platform upon which experience is interoperable. At first, the aim of the
computer and network geniuses was simply to find a way to make computers
talk to each other. Then application geniuses found ways to make the content
that runs on these different devices interoperate on a single digital platform. We
are close to a world where any format of sound can be mixed with any format of
video, and then supplemented with any format of text or images. There are
exceptions; there are some who don't play in this interoperability game. But the
push of the network has been to produce a world where anyone can clip and
combine just about anything to make something new. Just as the senses process
many different kinds of experiences (sound, images, smell, emotions) and then
offer them for translation on a single platform (the brain), so too have digital
networks made it possible to combine many forms of media, and make them
usable on single platform. (…)The Internet was not built with permissions in
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mind. Free access was the rule.” (Lessig, 2005g)
While interoperability and non-regulated access have been the fundamental principles of
the Internet Protocols, Lessig and Creative Commons do not seem to believe that these
freedoms found on the template should be the obligatory minimum for all licences. The
autonomy of the Creator is deemed as more important, and as Lessig notes in his 2005
CC Newsletters, different communities of practice have different needs and as such
there are different freedoms that are essential for each one of them (Lessig, 2005g).
These freedoms are to be identified by the respective communities and correspond to
the concept of native regulatory forms we have developed in chapter three. The role of
the Creative Commons project is to allow the freedoms deemed as important by
different communities to be expressed in the CC regulatory instruments and rhetoric.
This placing of utter importance on the autonomy of the creator is expressed in the
provision of tools that allow people to share but does not require them to share. This is
evident in the operation of the basic CC template. An examination of a typical scenario
of use of a CC licence using the basic template is revealing of the degree of autonomy
the creator is awarded.
In a scenario of CC licence use we initially have two parties: the licensor and the
licensee. According to the basic template, the licensor grants to the licensee, among
others, the right to make verbatim copies of the work without the requirement to ask any
further permission. It is important to realize how this mechanism operates in practice,
where the flow of the copies is not necessary coinciding with the flow of rights. If
person A is the licensor, she grants to person B the right to copy her photo that is
licensed under a CC_BY licence. Then person C copies the picture that she finds on B’s
website under a CC_BY licence. She is indeed entitled to do so. Nevertheless, the
licence is not between B and C but between A and C. B operates as a carrier for the
work that is always licensed by the original licensor. There is no sub-licensing
relationship and this is explicitly stipulated by the licences. In other words, whereas the
flow of the work may look like a rhizome, the flow of the rights is of a star shape where
the original licensor is at the center. B who operates as a carrier, together with the work
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is obliged to copy all the relevant copyright notices and licensing terms. This is the
same reason why B is not allowed to sub-license or alter any of the terms of the
licences.
A diagrammatic presentation of the operation
of the licence’s basic template
• A: licensor
• B, C, D, E: licensees
A • W: Work
• L: A CC licence
W L
L
L
B C
W
W
L The CC licence is always
awarded directly from the
D E Licensor to the recipient
W of the work. NOT through
any of the licensees that
merely operate as carriers
of the work
Figure 6.1 A diagrammatic representation of the operation of the licence’s basic
template
There are two sets of consequences of the fact that the creator retains the copyright: (a)
That she is not restricted in any way she chooses to further exploit or disseminate the
work other than in relation to the rights she has already granted to the users of the work
under the Creative Commons licence. These are irrevocable and the licence is perpetual,
i.e. it has a duration equal to the duration of the copyright that the creator has over the
work. (b) That she may impose a series of restrictions upon the licensee both in relation
to the licensor’s rights and with respect to the rights of any other persons the work may
be further disseminated to. Let us explore these two aspects of the “basic template”
further.
In case the licensee decides that she may use the work in any way that contravenes the
conditions of the licence or is beyond the scope of the freedoms granted with the
licence, she needs to refer back to the licensor. This is another important aspect of the
licences: they do create a space of freedom in the sense of creating a space of uses for
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which permission is not required. However, all the uses that do not fall within the scope
of the licences are not a priori excluded but need instead to become the object of a
separate and possibly individual negotiation with the licensor. For these uses that are
outside the realms of Creative Commons the default copyright rules are applicable.
The fact that the licensor retains the copyright is reinforced by the fact that the relevant
copyright notices cannot be removed by any licensee irrespective of the freedoms she
may obtain through the use of the licence. The control that the licensor legally always
retains over her work is also emphasized by the fact that any licensee, as explained
above, operates merely as a carrier of the work and all related copyright and licence
notices.
This sui generis role of the licensee as a carrier of the work entrusted with the
obligation to point at the unaltered terms of the licence, to retain any copyright notices
and to fulfill the attribution obligations is further reinforced with the Digital Rights
Management obligations she undertakes according to the CC licences. Since the
licensee never acquires any copyright, but is instead entrusted with certain freedoms
upon the condition of keeping with a series of conditions, she is not entitled either to
pass any rights she has not or to restrict the rights of any other potential licensee with
the use of any technology. This is made clear through a variety of provisions, such as
the ones referring to notices, prohibition of sublicensing, TPM etc.
All the aforementioned aspects of the CC licences clearly demonstrate that the licensor
and the original author remain at the center of the CC project: through the basic
template there is always a link between the licensor and the work and the licensee
operates only as a carrier of the copy of the work. Such structure follows the world-view
of the CC project and as we will see in the rest of the chapter it is also compatible with
the operation of the various Licence Elements of the CC licences.
The variable elements of the licences or Licence Elements were originally set to be four:
“(1) Attribution (meaning the creator requires attribution as a condition of using
his or her creative work), (2) NonCommercial (meaning the creator allows only
noncommercial uses of his or her work), (3) No Derivatives (meaning the creator
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asks that the work be used as is, and not as the basis for something else), and (4)
Share Alike (meaning any derivative you make using the licensed work must
also be released under a Share Alike license).” (Lessig, 2005i)
However, as Lessig explains (Lessig, 2005i) and as we will see in the discussions
section, because the Attribution option has been chosen in the vast majority of the
licensed works and for reasons of simplicity, the Attribution element was added to the
basic template and the combination of the rest of the three elements produced six CC
licences:
“Attribution (use the work however you like, but give me attribution)
Attribution-ShareAlike (use the work however you like, but give me attribution,
and license any derivative under a Share Alike license)
Attribution-NoDerivatives (use the work as is, and give me attribution)
Attribution-NonCommercial (use the work for noncommercial purposes, and
give me attribution)
Attribution-NonCommercial-NoDerivatives (use the work for noncommercial
purposes, as is, and with attribution)
Attribution-NonCommercial-ShareAlike (use the work for noncommercial
purposes, give me attribution, and license any derivative under a ShareAlike
license).” (Lessig, 2005i)
Being one of the obligations imposed upon the licensee, the Attribution element dictates
the crediting of the original author in all subsequent uses of the work. The element of
attribution is another expression of the tendency of the Creative Commons licences to
focus on the person and the rights of the original creator. Similar to the basic template
where all clauses were directed towards the respect of the rights of the author, the
attribution Licence Element is an element that is primarily focused on the person of the
creator. The transition of the BY element from the variable to the fixed licence elements
confirms the creator-centric operation of the licences and the similar way in which they
have been internalized by the creators themselves.
The ShareAlike element is one of the most crucial CC licence elements as it allows the
creation of derivative works based upon the basic work licensed under the CC licence. It
is the element that is closest to the copyleft element seen in the original Free Software
licences, and the General Public Licence in particular. To understand its operation we
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need again to think of it as an extension of the functionality found in the CC licences’
basic template. The licensor awards to the licensee a right to create derivative works
based on her copyrighted work upon the condition that these works are further
disseminated under the same terms and conditions as the original work. Section 4 in
overall and 4b in particular stipulates such conditions in the ShareAlike licences:
“You may distribute, publicly display, publicly perform, or publicly digitally
perform a Derivative Work only under the terms of this License, a later version
of this License with the same License Elements as this License, or a Creative
Commons iCommons license that contains the same License Elements as this
License (e.g. Attribution-NonCommercial-ShareAlike 2.5 Japan).” (Creative
Commons, 2005b; 2005f)
In addition, if the underlying original work is also disseminated or contained in the
derivative work, it is licensed to the recipient through the original CC licence. Section
8b in all the works not prohibiting the creation of derivative works expresses this
condition:
“Each time You distribute or publicly digitally perform a Derivative Work,
Licensor offers to the recipient a license to the original Work on the same terms
and conditions as the license granted to You under this License.” (Creative
Commons, 2005b; 2005c; 2005e; 2005f)
Two more points in relation to the ShareAlike function of the licences need to be added:
First, the licensee that creates a derivative work under the terms of such licences
becomes a licensor with respect to this new work that is now offered under the same
type of CC licence as the one under which the original work was offered. If we were to
see a diagram of successive derivative works licensed under a ShareAlike type of CC
licence, it would look far more complicated than the one of the template CC licence. It
would also look far closer to the rights flow of a GPL licensed work, because of a
similar pattern of interactions. Again this would not be valid for all types of works.
Works like an encyclopedia that are basing their production on numerous iterative and
incremental contributions would look close to the right-flows of a piece of software.
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However, works that are based on elements would look much different, being possibly
more spread out and less deep.
Second, with respect to the original work that is transferred along the derivative work
the flow of rights remains the same as in the case of the basic template CC licence. In
other words the relationship remains always with the original licensor as indicated in the
following diagram.
A diagrammatic presentation of the operation
of the Share Alike element
• A: licensor for original
work
• B, C, D, E: licensees
A for original work
• C, D: licensees for the
Derivative work
W L1
L1 • W: Work
• DW: Derivative Work
• L1, L2: CC_SA licences
DW L1
B C
L2
The creator of the derivative
DW work (DW) becomes a licensor
with respect to the DW and the
same licensing structure as
the one described in the basic
template applies. The original
D work is always licensed with
L2 the DW and still links with
the original author.
Figure 6.2 A diagrammatic representation of the operation of the Share Alike element
Summing up what we have seen from the licence features to this point:
(a) all Licence Elements suggest the autonomy of the creator as the boundary of the
Commons
(b) the creators practically want even greater autonomy and control over their work than
the one provided by the CC licences
(c) the Share Alike element that is the one closer to the Copyleft is the theme of most
common concern. Its discussion follows a pattern where discussion moves from the
general level of why there are no predefined principles for all Copyleft licences to
specific problems related to the CC_SA licences and then again to the discussion of how
such principles could be practically derived.
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6.4 Analyzing Participation and Interactions
The patterns of movement from the autonomy of the creator to the need for collective
decision making in order to compensate problems of accidental incompatibility are
complemented with similar patterns regarding participation and interaction patterns over
the “cc licenses” mailing list. In the following five subsections we present the
participation and interaction patterns from two periods in the life of the “cc licenses”
mailing list, one from August 2002 to December 2003 and a second in August 2006
regarding a specific thread, the one referring to version 3.0 of the licences.
6.4.1 Participation patterns
There is an undeniable pattern in the early stages of the mailing list indicating that the
vast majority of the messages are posted by a relevantly small group of participants. The
range of participation is a first indication of this phenomenon: the most active
participants account for a maximum of 6% of the overall number of messages. As the
following diagram indicates, the 76.37% of the overall population of active participants
post messages, each one of which accounts for maximum 1% of the total amount of
messages posted on the ‘CC licenses’ mailing list; on the other side of the spectrum,
only 1.82% of the population of active participants post the maximum number of
messages that account of no more than 6% of the overall population of messages.
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Distribution of postings per population
90.00
80.00
76.36
70.00
60.00
Percentage of Population
50.00
Distribution of postings per population
40.00
30.00
20.00
14.55
10.00
5.45
1.82 1.82
0.00 0.00
0%-1% 1%-2% 2%-3% 3%-4% 4%-5% 5%-6%
Percentage of postings
Figure 6.3 Distribution of postings in the population of active participants over the “cc licenses” mailing list
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Very similar are the results from the analysis of the persistence of the active participants
during the period of the first data set (see section 5.2.1) examined in this thesis: 76.36%
of all participants are only active for a single month, whereas the maximum period of
active presence identified from the analysis of the relevant data is only reached by
1.82% of the participants. The following graph presents the relevant distributions:
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Persistence Distribution
90.00
80.00
Percentage of "CC licenses" mailing list participants
76.36
70.00
60.00
50.00
Persistence Distribution
40.00
30.00
20.00
10.00 10.91
5.45
3.64
1.82 1.82
0.00 0.00 0.00 0.00 0.00 0.00
1 Month 2 Months 3 Months 4 Months 5 Months 6 Months 7 Months 8 Months 9 Months 10 11
Months Months
Months
Figure 6.4 Persistence distribution in the population of active participants over the “cc licenses” mailing list
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In relation to the way in which participation is structured in terms of the degree to which
certain participants are the ones that frame the discussion by initiating it or by posing
issues that have the greatest impact on the discussion (as described in section 5.2.2 of
the methodology chapter), we have a significant amount of participants (14.55%) that
have never initiated any thread and hence have only followed the discussions and the
majority of the participants (58.18%) have initiated a number of postings that amounts
only for a range of 0.1-2% of the overall threads initiated. Again, only 1.82% of the
overall number of participants is responsible for the greatest number of initiated threads
that are 14-16% of the overall amount of initiated threads. This pattern indicates that
even the most active participants do not have a share that is more than 16% of the
overall number of threads, as seen in the following graph:
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Thread initiation distributions
70.00
60.00
58.18
Percentage of users initiating threads
50.00
40.00
Thread initiation distributions
30.00
21.82
20.00
14.55
10.00
3.64
1.82
0.00 0.00 0.00 0.00 0.00
0% 0%-2% 2%-4% 4%-6% 6%-8% 8%-10% 10%-12% 12-14% 14%-16%
Percentage of initiated threads
Figure 6.5 Thread initiation distribution in the population of active participants over the “cc licenses” mailing list
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The distributions of average thread depth (section 5.2.2) that assess the impact of the
contributions per participant indicate that the majority of the participants’ contributions
are of low impact: the threads by 46.81% of the active participants that have initiated at
least one thread are of an average depth between 1 and 2 posts, whereas only 2.13% are
responsible for threads that have an average depth between 6 and 7 posts.
In the early period each participant initiates and average of 1.78 threads, whereas the
maximum number of threads initiated per participant is 14, which indicates a huge gap
between the average of a participant's initiation and the initiation of discussions by the
most active participants.
If we compare this early period with the more mature period of the discussion of version
3.0 of the licences we get a different image in the sense that the participation is more
evenly distributed though again the majority of the postings derive from a minority of
participants: the 61% of postings is reached by the top 27.27% of participants in terms
of postings.
Number of postings
2% 4%
4%
4%
7%
Peter Brink
Mia Garlick
28% 9%
Terry Hancock
Paul Keller
Mike Linksvayer
Greg London
Tomislav Medak
7% Rob Myers
Evan Prodromou
Drew Roberts
Luis Villa
11%
22%
2%
Figure 6.6 Number of postings per active participant in the discussions on v.3.0 of
the CC licences
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This is also apparent in the average number of postings per participant. In the early
period of CC development we have an average of 1.66 messages per participant,
whereas in the case of the v.3.0 discussion fragment, an average of 4.09 messages per
participant is reached. Unlike the early period number of postings by CC staff members
is more limited though we have more postings by national CC project leads (11% by CC
Staff, 11% by national CC projects). In overall the postings by CC-related staff
(international affiliates and CC staff) is around the same levels (22% vs. 25%).
An interesting question is whether the same individuals being the ones with the most
active participation are the ones that also frame the discussion by initiating most of the
threads. Indeed, the three individuals that top the list of postings are the same that top
the initiation of threads. The Creative Commons legal counsel Glen Otis Brown is first
amongst the posting individuals (16%) whereas he ranks second in terms of initiated
threads (8%). Prodromou is also a very interesting case as he ranks second (13%) and
third (8%) in the respective categories and is the founder of Wikitravel having as a
particular concern the compatibility of different free/ open content licences. We will see
Prodromou again in the discussion regarding v.3.0 of the licences, being the only one of
the very active participants that has survived four years of CC discussions with an even
greater participation level (28%) ranking first among the several participants.
6.4.2 Thematic Representation Patterns
The analysis of the content of the “cc licenses” mailing list in the way it has been
specified in the methodology chapter (section 5.2.2) has produced a series of basic
thematic categories that seem to be the most popular over the “cc-licenses” mailing list
during the early period of its operation (figure 5.1). The most popular thematic
categories (being the 8.44% each of the overall number of themes for the studied
period) were issues of clarity in general and issues related to the operation of the Share
Alike element. The theme of clarity has been identified in relation to a variety of other
issues, ranging from features specific to the CC project such as specific licence elements
to broader Copyright related issues. The second most popular theme, with 7.14% of the
thematic appearances, was related to the operation of the BY element. The issue of
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attribution is again a ‘vertical’ type of theme appearing in conjunction with many other
elements, particularly the SA element, raising questions regarding the way in which
attribution should be made in derivative work licensed with more than one type of
licences.
The interrelation between the issue of Attribution or moral rights and issues of clarity is
apparent in the “cc licenses” discussions:
In September 2003 Riba (2003) raised the issue of moral rights and Attribution clarity in
relation to the ShareAlike Licence Element. She referred to the issue of notifying the
author for changes to her work through a notification option. Riba clearly stated that she
was not interested in providing permission but rather to know who is using her work for
derivative works. She was also very interested in not getting credit for something she
has not done or to be attributed with something that was not hers (2003). In the same
period Olson (2003) has raised the same issue from a slightly different perspective.
Being the CEO of a database software house, Sleepycat, he was concerned with uses of
derivative works of his company’s guides that may give the impression that were made
by his company. In particular he was interested in the use of the company’s logos in a
non approved way. His suggestion was to add a notice making clear that the logo
remains the property of Sleepycat Software and that derivative works have nothing to
do with the company. The response by Creative Commons in the words of Linksvayer,
has been that this resembles the way CC deals with its trademark and that this could be
a way of dealing with the situation (Linksvayer, 2003a).
The broader concern of non-endorsement was already mentioned in the list since
September 2002, by Joseph Reagle (2002). Reagle answering to a previous call by
Brown to comment on version 1.0 of the licences (Brown, 2002) questioned the purpose
of removing the original author’s name from the derivative work upon notice. Instead,
he suggested a direct provision that would allow direct non-endorsement of the
derivative work by the original author (Reagle, 2002).
Another issue that has been of particular concern to the users of CC licences is how
exactly the attribution obligation is to be fulfilled. The issue has been raised with
particular focus on the ShareAlike licences and in relation to how the two attributions,
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one to the original and one to the derivative work, should be made. The questions were
raised in relation to the creation of a Japanese collective work based on original CC
licensed work on the topic of the use of CC licences. The discussant raising the issue,
Tomoaki (2003), listed three options for how the referencing should be made:
(a) List all the original authors along the people having made the changes without
distinguishing between the two.
(b) Make a list of authors, year and format in a CD like way but with no reference
on originals and derivatives
(c) Specify which section of the booklet used which work, with copyright holder of
the work, title of the work, & year. (Tomoaki, 2003)
The person who responded to the questions from Watanabe, was De Tomasi who had
already contributed to the discussion of moral rights. The suggested solution by De
Tomasi is to follow a system similar to the bibliographic one, in the sense of referencing
only the works from which directly elements have been taken and not the whole list of
existing works on which a derivative work may be based upon (Tomasi, 2003a).
A similar but not same question was asked by Hendry in late 2003 (2003). Hendry was
interested in attributing Creative Commons website, where the list of persons that have
contributed to the site would have been awfully long. Brown’s response was that the
Creative Commons name would suffice, providing also an answer to the question
whether the attribution could be a legal person and more than one individuals (Brown,
2003d).
The third group of popular themes appearing on the list is possibly the most interesting
one as it constitutes the biggest group of themes (25.96% of the overall themes; 6.49%
of individual thematic popularity) and also features four themes that relate to each other.
The first of these themes relates to issues of licence compatibility and transition from
one version of licence to another. It appears in conjunction with many of the more
popular themes such as the SA and BY discussions or the themes of clarity and
Attribution we have seen before. The second theme incorporates all FLOSS related
issues. It ranges from issues that have to do with the common principles in different
Open Source Licences to issues of the interaction between CC and FLOSS licences. The
third theme in the group is that of the operation of the basic CC template as described
earlier in section 6.3 of this chapter. The main interests of the participants posing such
246
issues relate either with issues of the scope of the rights they confer or the degree of the
control that is left with the original creator. Finally, the fourth theme deals with the
introduction of new licence variations as a result of specific needs in particular
circumstances. It is important to note that a significant portion of the proposals for new
licences is related to the question of interaction between different types of licences.
One of the first questions to be raised in this context was in January 2003 asking
whether the Creative Commons ShareAlike licences was considered to be GPL
compatible in the same sense as the Design Science and the Free Art Licences
(Croome, 2003b). Croome was not only asking about the compatibility but whether
there is an official Free Software Foundation position regarding the compatibility.
The first response that Croome got by Turner was that the CC_SA licences were not
compatible with the GPL as they required the derivative works to be distributed under
the CC_SA provisions, which among others included an anti-DRM provision that might
not be GPL or FSF compatible (Turner, 2003). Brown’s reaction to the discussion
between Croome and Turner was to indicate that this was at the time an issue Creative
Commons had not looked into to depth as yet, but also to suggest a few reasons why the
GPL and the CC_SA licences were probably not compatible. One was that the CC
licences were primarily for non-software material unlike the GPL and thus the two types
of content would not necessarily interact. This point led to the second part of Brown’s
argument that since the CC_SA licences were not designed for software, the term
copyleft though was the source of inspiration for the CC_SA licences it was not
preferred. Instead the ShareAlike provisions seemed to Brown to be performing the
same function as the copyleft in a non software context: “The nonsoftware analogue to
making the code of a new work openly available is to make the derivative work itself
available on the same terms as the original.” (Brown, 2003f). Another thread that needs
to be mentioned in this stage is one that started with some notes on the CC licences in
relation to some probable errors to then focus on the question of whether the CC
licences are compatible with the GPL. De Tomasi has initiated the discussion in a way
similar to Croome, but this time by asking whether the CC_SA licences were
compatible with GPL, whether they are copyleft or Open Source and in the case they are
any of the two, whether logos in the Commons Deed could be added accordingly
(Tomasi, 2003b). Croome actually referred to De Tomasi’s question in August 2003,
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about eight months after the question was originally raised (Croome, 2003a).
Prodromou provided an answer similar to the one that Brown has provided to Croome
but again from a different perspective: CC_SA licences are not really compatible to the
GPL licences since in the former there is no reference to source code. In addition as
Swartz would later add (Swartz, 2003), only GPL is really compatible to GPL
(Prodromou, 2003a). Regarding the Open Source question Prodromou will again direct
to the definitions of the Open Source Initiative, making nevertheless the same point as
in relation to the GPL regarding the absence of reference to source code in the case of
the CC_SA licences (Prodromou, 2003a). Finally, Prodromou presented another version
of the question regarding compatibility: that you may include a GPLed work in a
CC_SA work or a CC_SA work in a GPLed work claiming that this is possible for the
former and very difficult for the latter (Prodromou, 2003a).
Soon after the issue of the compatibility with the GPL has been raised, the discussion
has been narrowed down to Open or Free Content licences applied on non-software
subject matter or “content”. The GNU Free Documentation Licence (GFDL or FDL)
has been possibly the most prominent example. Again these questions have been asked
in relation to the SA element of the CC licences. In October 2003, Lemay posed the
issue in relation to the CC_SA 1.0 licences (Lemay, 2003): the latter required the
derivative works to be licensed only with licences identical to those governing the
original work: "The licensor permits others to distribute derivative works only under a
license identical to the one that governs the licensor's work." (Lemay, 2003) Lemay
found the term “identical” particularly strong as it has could lead to severe
incompatibilities between the various CC licences as well as the CC_SA licences and
the GFDL. He suggested three potential solutions: (a) to amend v.1.0 of the CC_SA
licences in respect to the “identical” element (b) to exhaustively list all CC_SA
compatible licences or (c) provide people with the opportunity to list the licences they
deem that they “meet the spirit of ‘sharing alike’” (Lemay, 2003). Brown responding on
behalf of Creative Commons emphasized that these constitute part of the CC versioning
research; however the listing suggestion even from mid 2003 was not the preferred
solution. Brown hinted that the Creative Commons was looking for an as open ended
solution as possible (Brown, 2003c).
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The issues raised by Lemay were further emphasized by Shanks a month later, in
November 2003 (Shanks, 2003a). Shanks being involved in wiki communities referred
to the great problems that they were facing in relation to multiple licences. He thought
that there was great need for allowing people to combine both the GFDL and CC_SA
licences. Shanks referred to two examples of wikis: one, emacswiki doing triple
licensing (including GFDL and CC_SA 1.0) and a second one (wikitravel) using the
CC_SA licences over GFDL licences. The problem with triple licensing was that the
derivative content could not be used by anyone else, neither could they use material
licensed under GFDL or CC_SA to create derivative works that would be triple licensed
(Shanks, 2003a).
The issue of compatibility between different licences has been brought about long
before the point of creating a new compatible licence has been raised. In August 2003
Prodromou has raised the issue in relation to what he coined “calculating Derivative
Work licence compatibility” (Prodromou, 2003b). Prodromou gave two scenarios.
Under the first one, a derivative work coming from an original CC_BY was to be
licensed under CC_SA. The second involved again a derivative work coming from an
original CC_BY work but this time licensed under the GFDL. Prodromou’s concern
was related to the compatibility of derivative works potential licensing schemes to the
licenses of the original works. Prodromou raised the issue in the context of the GFDL
and CC_SA licences since, as we have already seen, these were the licences he mostly
used in his wiki. He suggested the creation of a tree diagram related to the compatibility
of CC licences with each other and the GFDL together with a technical tool over the
website that would make such implementation possible (Prodromou, 2003b).
Linksvayer responded to Prodromou first in relation to his particular question and then
concerning the broader issues the latter raised (Linksvayer, 2003b). The derivative work
from a CC_BY work could be licensed under a CC_SA licence but not the other way
around. Similarly the same derivative work could be licensed under the GFDL but
attribution to the original author should be maintained and the link to the original
licence be preserved. The issue here is more than anything else whether the GFDL is
compatible with such arrangements (Linksvayer, 2003b). Regarding the broader issues
raised by Prodromou, Linksvayer mentioned that the “tree” is in the TODO list and that
the technical tool suggested by Prodromou will be implemented. The latter further
responded to Linksvayer’s comments by clarifying the purpose of the original examples
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he offered: he was interested more in how the compatibility between the various
licences may be calculated than getting answers for the specific examples (Prodromou,
2003n). Prodomou (2003n) also offered a first tree of compatibility though he was not
confident it was a correct one.
The problem of licence compatibility in the case of derivative works has also been
raised in November 2003 under the title of dual licensing. Prodromou, founder of
wikitravel, was the one that initiated the discussion explaining the problems wikitravel
was facing with respect to dual licensing (Prodromou, 2003c). Wikitravel was at the
time using the GDFL as it was the main copyleft licence available for non-software
material at the time of the wiki release. Wikitravel has recently opted for CC_BY_SA
licences as a result of the extensive requirements accompanying the GFDL licences.
The problem that wikitravel was facing as Shanks (Shanks, 2003a; 2003b) has already
mentioned was that GFDL and CC_SA content were not miscible (Prodromou, 2003c).
Prodromou thus decided to double licence all works with CC_BY_SA and GFDL.
However, this move raised further problems. The derivative works made out of the dual
licensed works could be further licensed under only one of the two licences since the
two were mutually exclusive. In addition in the case that derivative work was released
no one, not even the original author, could double license it (Prodromou, 2003c).
Brown’s response was that at that time Creative Commons was still struggling to find a
solution to the compatibility problems (Brown, 2003a).
The response provided by Gruettmueller directed the conversation more towards the
features of the wiki working environment (Gruettmueller, 2003c). The problem with
such working environments, Gruettmueller argued, is that permissions need to be asked
by far too many people and that is not practical. In addition though there are many
contributors, the administrator of the site is not the owner of the content. In addition,
most of the wikitravel site is licensed under the GFDL 1.2 that allows derivative works
to be licensed with any subsequent future GFDL version (“any later version”) whereas
this is not the case with CC_SA licences v.1.0 that did not provide such facility. Hence,
the wikitravel site in the case of any future changes would need to start its licensing
from scratch (Gruettmueller, 2003c). A similar point, but not in the wiki context was
raised the same month by Shrieve. The latter made the scenario more complicated by
adding the NC element. Shrieve’s case was of an artist that licences a song (music and
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lyrics) under a CC_BY_SA_NC licence. Then another artist makes a derivative work
licensing it under the same type of licence. If a third artist makes a derivative of the
second work and wants to use it for commercial purposes, does he need to ask
permission from all line of previous artists on which the derivative work is based?
(Shrieve, 2003) Shrieve never got a response to his question.
Gruettmueller similarly to Prodromou (2003n) in a previous thread we have already
seen suggested that the only way to solve the problem of compatibility is to actually
compile a list of licences under which a work could be re-licensed. What is most
interesting is the suggestions that Gruettmueller made in relation to how this list could
be maintained and the process of updating the CC licences should be done. For
Gruettmueller the process of upgrading the CC licences should be as transparent and
public as possible with some role-playing also included. Further to that he suggested
that the licence listing should be done through a trustworthy organization with
democratic structure like Debian. Gruettmueller completed his suggestions by
expressing his hopes that the Creative Commons will evolve into an organization like
Debian in the future (Gruettmueller, 2003c).
Prodromou answered to Gruettmueller’s point on the multiple authors problem by
stating that dual licensing has only occurred in cases where a single author was involved
(Prodromou, 2003d). Prodromou still insisted that such a procedure was not easy at all
and that a change in the CC_SA licences handling the problem would be most welcome
(Prodromou, 2003d). Gruettmueller responded to Prodromou’s comments to further
clarify his position; what he was referring to was the upgradeability of the CC_SA
licences rather than dual licensing. The problem for Gruettmueller was that the wording
of CC_SA v.1.0 licences did not allow licensing with any future versions of the same
licence. Again the comparison was with the GFDL that actually allowed for such future
compatibility (Gruettmueller, 2003a). Prodromou agreed with Gruettmueller that the
problem of compatibility with future versions of the CC_SA licences was a “grave” one
and predicted that there would be works under multiple licences though wikitravel will
provide to its users the option of licensing their work under a later CC version
(Prodromou, 2003i).
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Indeed, Prodromou has raised the issue of “any later version” compatibility between the
Creative Commons version 1.0 licences and their subsequent version since August 2003
(Prodromou, 2003e). Initiating the homonymous thread, Prodromou asked why the
Creative Commons licences did not include a clause that would ensure compatibility
with subsequent versions of the licences. He mentioned that the General Public Licence
contained a relevant section titled “Future Revisions of the Licence” that tackled the
issue by making sure that the works were licensed under the existing or any later
version of the GPL. Prodromou urged Creative Commons to follow the GPL model in
that respect: “Why can't you be more like your big brother, Creative Commons?”
(Prodromou, 2003e) Linksvayer responded to Prodromou suggesting that the CC_SA
licences would change in their subsequent versions to tackle compatibility problems
with other open licences and CC_SA v.1.0 licences. Such a move would most probably
require the existing CC users to upgrade (Linksvayer, 2003 ). Prodromou returned to the
issue of compatibility stating how big a problem for wikitravel still was in December
2003 after being prompted by another user admitting the problems that the upgrade
would entail for wikitravel since permissions from all contributors may be required
(Prodromou, 2003f).
The following graph presents in detail the popularity of different themes as resulting
from our analysis:
252
% of overall themes
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Figure 6.7 Popularity of themes discussed in the “cc licenses” mailing list
Thematic Popularity
N
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Theme Name
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253
The overall distribution of popularity of the various themes indicates that there is no
single dominant theme over the cc licenses mailing list, but rather themes are reasonably
evenly distributed. At the same time the qualitative data analysis indicates that the issue
of inter-relationship between different licensing schemes or the issue of interoperability
in Lessig’s terminology (Lessig, 2005g), appears as the dominant native norm among
the various themes: the users of the licences and participants to the lists are
predominantly interested as originally suggested by CC in how they will be able to
share, reuse and remix their material with the minimum legal friction. In addition, the
structural elements of the CC licences (basic template and Licence Elements) are the
ones that set the thematic boundaries of the list. Figure 6.8 indicates that the 13.04% of
the most popular themes have a popularity that ranges between 8-10%, whereas the
majority of themes (65.22%) have a range of popularity between 2 and 8%.
254
Distribution of themes in %
30.00
26.09
25.00
Percentage of overall no of messages
21.74 21.74
20.00
17.39
15.00 Distribution of themes in %
13.04
10.00
5.00
0.00
0%-2% 2%-4% 4%-6% 6%-8% 8%-10%
Appearance of themes in the "CC licences" mailing list in %
Figure 6.8 Distribution percentages of themes discussed in the “cc licenses” mailing list
255
6.4.3 Commons as in Common Law: understanding
participation and representation in the CC project
This kind of result is on the one hand expected, but precisely because it is expected is
surprising: the construction of an artifact through the employment of mailing lists is not
a novelty; even the construction of a regulatory artifact is not something original: this is
the idea of FLOSS and is based as we have already explained on the way in which the
development of the Internet Protocols has taken place. The data regarding the “cc
licenses” mailing list and the relevant literature indicate that the participation on such
lists follows the same interaction patterns as the ones we have described in the case of
the “cc licenses” mailing list: not all participants to the mailing list actually make
postings and not all those participants making postings have the same degree of
participation; it is the minority of the participants that are responsible for the majority of
the messages as well as for the framing and directing of the discussions. In that sense
the findings regarding the participatory patterns are not surprising. The question that
naturally arises is, if such patterns are not surprising then why is this form of platform
chosen by the founders of the Creative Commons project for the development of the
licences and hence the cultivation of the regulatory commons. This question is further
intensified, if we take into consideration our preceding analysis that indicated that the
expression of the native regulatory relationships and hence the construction of the
regulatory commons is one of the primary concerns implicit or explicit in the Creative
Commons project.
Perhaps the answer lies in the model of Commons Lessig is mostly familiar with and the
kind of representation that is sought in the CC project. A look into the kind of
arguments that are most likely to survive in the ecology of interactions taking place over
the “cc licenses” mailing list is instructive of the kind of representation we are seeing in
the CC project.
256
To use Lessig's terminology, the arguments that are most likely to survive in the “cc
licenses” mailing list are the ones holding the strongest pedigree of associations (Lessig,
1989; 1993): the arguments that seem to represent the most extensive and coherent sets
of associations are the ones that have more chances to be represented and remain in the
text of the licences or to lead to an organizational change in the CC project. The
example of the treatment of TPM over the “cc licenses” mailing list is illustrative of this
aspect of the CC project.
In the case of the treatment of the DRM in v.3.0 of the licences., there is a series of
contrasting representations taking place: on the one hand we have the Debian group and
their definition of what constitutes a free licence and on the other hand the Free
Software Foundation on the issue of the Technical Measures of protection; there are
also representations of particular types of technologies for content dissemination such as
the ones used by iTunes and representations of the operation of the General Public
Licence v.3.0 on the issue of Technical Protection Measures and of course
representations of the way in which TPMs are represented in the Copyright Directive;
there are representations of the various national Creative Commons delegations (the
Creative Commons International affiliates) and their views on the way the wording of
the relevant CC licence section should be formed; finally, a series of cases actual and
hypothetical are represented as arguments by the various participants to support their
point. The account on the development of the final text of v.3.0 of the CC licences by its
legal counsel as well as the way in which the final stage of the discussion took place
after August 2006 indicates that the question regarding the content of the DRM - related
section of the CC licences was resolved after having taken into consideration not merely
issues of logical validity of the arguments raised by the different parties but also -if not
mainly- by assessing the support that each of the contrasting opinions had in terms of
technologies, communities, cases and social norms it represented.
In her explanation of the reasons behind the introduction of the TPM clauses, the CC
legal counsel, Mia Garlick, provides a full background of the whole discussion by
introducing the Debian group, the Debian legal mailing lists and the Debian Free
Software Guidelines. She then presents the other actors, the relevant clauses of CC v.2.5
licences, the concept of DRM/TPM and the “cc licenses” mailing list. Once the setting
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is there, Garlick explains the main arguments for and against an amendment of the
clause and then she proceeds in presenting the arguments from different sides and the
impact they had on the Creative Commons decision. The grounds on which a proposal
for parallel distribution and the subsequent amendment of the existing wording
regarding the anti-TPM clause were rejected is revealing of the pedigree argument, as
well as the representation of native regulatory forms into the CC licences:
“The parallel distribution proposal did not, however, survive discussions with
the Creative Commons International affiliates. (...) Based on their experience
with the diverse communities that use and rely on CC licenses and explaining
the licenses to different constituencies, the CCi affiliates were strongly opposed
to the introduction of a parallel distribution scenario for various reasons,
including: (1) the lack of demonstrated use cases showing a strong need among
CC licensees for this kind of an exception to the existing “anti-TPM” language;
(2) risks of unduly complicating the licenses which defeats a lot of the purpose
of CC licenses, namely to be simple and easy to use and to understand; and, (3)
the strong opposition to technological protection measures in general by many in
the CC community.” (Garlick, 2007)
The legal leads of national CC project or the Creative Commons International affiliates,
to adopt the CC language, is the new actor emerging that seems to object some of the
arguments posed in the list by the pro-Debian group. If we take a close look into the
arguments of the CC International affiliates we get a strong sense that the decision is
purely a political one: there is not enough support by technologies (the demonstrated
use cases); the inertia of the text of the licence seems to be objecting (will further
complicate the licence); and there is not enough human support (strong opposition to
TPM within the CC community).
When the discussion starts again in August 2006 which is the time when the period
under study of the CC v.3.0 licences in this thesis also begins, the participants in the list
have to disprove all three points. The discussions on the “cc licenses” mailing list never
managed to overcome all three barriers, something that we have also seen in the
discussion segment under analysis:
258
“However, the overall tenor of the cc-licenses list discussions tended not to favor
adoption of the parallel distribution proposal. There was concern that if parallel
distribution were permitted in the CC licenses this would reinforce, if not
expand, a platform monopoly enjoyed by a TPM-ed platform that only allows
the playing of TPM-ed content (See Greg London, Re:Subject: Version 3.0 –
List Discussion Responses, September 28, 2006, see also, Terry Hancock,
Debian and Creative Commons, October 18, 2006). Other concerns were voiced
that the non-TPMed copy may not be able to played as well as the TPM-ed copy
and, generally, that the community was not in favor of supporting a TPM option
at this stage (For an overview of the discussions, see the discussion archives for
August, September and October.)” (Garlick, 2007)
There are two striking features in the above passage: first how clearly is the role of
different technologies illustrated in the decision making process; and second, how the
overall sentiment is that the pro-TPM amendment would actually reinforce a type of
technologies that is not desired by the majority of what is referred to by Garlick as the
CC community. The same feeling is evident throughout Garlick's overall explanation of
the CC v.3.0 licences. If we notice the names that are mentioned in Garlick's account we
will see the same names we have identified in our analysis: Prodromou, Hancock,
London. Other participants like Linksvayer are not acknowledged since they are
members of the CC staff and they play the soft-moderator or facilitator role, whereas
participants like Keller are covered by the CC International affiliates characterization as
the project lead for CC Netherlands.
However, what the author of this thesis finds as the most interesting part in Garlick's
account is the punch line at the end of the Debian-parallel distribution section: it seems
that one of the primary reasons behind the decision is the treatment of GNU Free
Documentation Licence with its anti-TPM clause by Debian:
“Certainly, Debian voted (See ‘General Resolution: Why the GNU Free
Documentation License is not suitable for Debian main,). earlier in 2006 to
allow works licensed under the Free Documentation License to be used in
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Debian projects. The vote specifically says that the anti-TPM clause in the FDL
does not render the FDL incompatible with the DSFG. However, it is not clear
whether this treatment is an exception or will also enable the CC Attribution and
Attribution-ShareAlike license to also be held to be compatible with the DSFG.”
(Garlick, 2007)
In a way similar to the mechanism of Common Law, the Creative Commons v.3.0
licences hope that they will manage to be faithful to the sentiment of the CC community
and at the same time take advantage of Debian legal's precedent in relation to the
GFDL. The argument is the same as the one the Hancock made soon after Garlick's
point in August 2006.
Returning to the question of the kinds of representation we observe on the “cc licenses”
mailing list we may conclude that a focus merely on the human or quantitative element
of participation may be misleading: a variety of cases, communities, technologies,
ideologies, legal instruments and legal systems are represented on the discussion even if
these are made by a limited set of individuals compared to the overall population of
those posting messages. The repetition of the same issues and the discussion of similar
cases are to the benefit rather than to the detriment of the regulatory commons. Native
forms of creativity are not perceived as such by the participants; however, their
constituent parts are found first on the “cc licenses” mailing list and gradually into the
text of the CC licences. While all these elements appear on the list in a very
unstructured and anarchical fashion, it is this very lack of order that operates as the
filtering mechanism that actually causes some of these representations to survive and
certain others to disappear: only the sets of associations that are strong enough to outlive
this mess of a lack of structure, fragmentation and repetition are the ones that may be
represented in the formal regulation of the CC licences.
The representation here does not happen in the structured way that it would happen in
the case of the House of Commons, where the representatives have been selected
through a formalized voting process but rather in the way in which Common Law is
cultivated through the random selection of cases that often repeat themselves and
incrementally develop over time. Needless to say that the regulatory commons are not
260
operating entirely in the same way as the precedent principle would operate in the case
Commons Law, the existence of an expert judge being one of the fundamental
differences between the two. Nevertheless, the metaphor of the Common Law as a
device for cultivating native forms of creativity and expressing them into formal forms
of regulation is rather appropriate and useful for making us escape the parliamentary
and human-centric pre-conceptualizations of representation that does not allow us to
appreciate the way in which the regulatory commons are developed in the case of the
CC project.
6.4.4 Interaction patterns
Looking at the interaction patterns on the cc-licenses mailing list we get a very
interesting picture. The first impression is that the various discussions are isolated and
fragmented; that there is a good reason why there are only few of the active participants
accountable for most of the postings and that there is not much of a Commons in the
sense that the structural features of the discourse are such that any new participant is
discouraged to post. However, as the list evolves in time we see that there is some form
of Commons appearing, though not in the sense of the green pastures an idealist would
have imagined or that the CC rhetoric presents in the CC promotional films (Brown,
Paharia, Junell and Walker, 2002).
These Commons, as seen through the series of interactions that constitute them, look
very much like threads. Lots of threads that as they get collocated one after the other
they form a huge patchwork that manages to stick together: the regulatory commons.
An analysis of the “cc licenses” mailing list in terms of interaction patterns identifies
three types of threads: First, there are explicit threads as set by their stated topic. These
are found in the early period of the CC licenses mailing list. Second, there are implicit
sub-threads, particularly within really deep threads, as a result of the breaking up of the
stated topic in the process of the discussion (figure 6.9). These are found in cases of
deep threads such as the one studied in the second period of the “cc-licenses” mailing
list on the v.3.0 of the CC licences. Some of these sub-threads may end up being new
261
explicit threads of their own. In the diagram that follows we illustrate such a formation
in the v.3.0 discussion indicating the themes of the sub-threads.
{Garlick, 2006 #836} Main {Keller, 2006(i) #2}
Topic Deadline
{Garlick, 2006(ii) #3}
Four Weeks but flexible
{Prodromou, 2006(iii) #6}
Political importance of the acceptance
by the Debian Community
{Prodromou, 2006(i) #4} {Prodromou,
The problem of DRM as seen by DFSG 2006(ii) #5}
and the solution of parallel distribution Existing (2.5)
provisions could
stand as they are and
still allow DRM
releases
Figure 6.9 Implicit sub-threads in the CC v.3.0 discussions
Third, there are implicit super-threads that essentially run through more than one
explicit threads, while retaining some sense of coherence in their consecutive mutations
either in the participants or the thematic area they cover (figure 6.10). These are found
in the early period of the CC licenses mailing list as in this period we have more than
one narrow threads being linked with each other in implicit super-threads structures.
262
August 2003
Thread: Derivative
Thread: Or Any Work License Thread: Future-proofing CC licenses
Later Version Compatibility
calculator
{Prodromou, {Prodromou,
2003j #394} 2003u #857}
{Brown, 2003j
#397}
{Linksvayer, {Linksvayer,
2003d #395} 2003e #396}
{Prodromou,
2003e #385}
{Linksvayer,
2003c #386}
{Prodromou,
2003f #387}
{Linksvayer,
2003ci #856}
Figure 6.10 Implicit super-threads in the early “cc licenses” mailing list period
There are also four forms of threads (explicit or implicit) that may be identified either in
the narrow threads of the early or the really deep threads of the late period of the cc-
licenses period. First, we have “orphan” threads: threads containing only a single post
(figure 6.11). The existence of orphan threads in the early Creative Commons period is
quite often. In this early period the phenomenon may be attributed mainly to the lack of
great numbers of participants, the lack of awareness regarding the project, and the
technical problems that were endemic to the list and are indicated by the increased
263
amounts of spam found in the archives in the first six months of the life of the project. It
may also be attributed to the lack of familiarity with the licence draft itself. After June
2003 when the first licence text draft becomes available through the list the number of
orphan posts is reduced and the overall amount of postings is radically increased. Even
after the introduction of the first draft of the licences, orphan threads continue to exist
but are neither the majority nor of the same kind as the early orphan threads. They are
rather the result of themes that do not seem to be compatible with the rest of the themes
in the discussion of the period in which they appear or are pushed by the same user.
In very advanced stages of the discussion as we will see in the CC v.3.0 discussion
fragment which happens within a single thread, we do not have orphan threads but a
similar phenomenon of orphan postings. The example of Medek's message (2006) on
other issues than the ones raised at the time of him posting the message (that is DRM
and TPM issues) had as a result to be totally ignored by the rest of the participants being
preoccupied with a very intense (lots of messages in limited time) and deep (lots of
messages on the same topic) discussion. As we will see clearer later, the development of
the discussion after a point reaches a level of closure that prohibits participation to
anyone that either cannot follow its pace or poses an alternative topic even if that topic
relates explicitly to the root (initiating message) of the discussions.
August 2002 October 2002
Thread: Legal disclaimer Thread: Open Audio Thread: Commons Deed/
Thread: Welcome on Creative Commons License Icons
Deeds/licenses
{Swartz, 2002 {Munger, 2002 {Bradley, 2002 {Jenett, 2002
#341} #466} #400} #451}
Figure 6.11 Orphan threads example
264
Second, there are Q&A threads (figure 6.12). These normally include a question or
statement and the relevant response. Such threads appear mainly in the first months of
the project and involve the highlighting of typos or minimal type of errors that may be
directly addressed. Another category of q&a thread includes not actual q&a but rather
clarifications of the same person that makes the first posting; these are postings of
generic nature such as the announcement of the first text draft of the licences in June
2003 by Brown (2003b; 2003e). A third category of q&a threads is found during months
where there is a multiplicity of messages and threads and tend to be found in groups. A
final category of q&a threads involves ones that spread for a period of more than one
month and as such though they comprise of only two posts spread for a longer than the
normal period of time.
September 2003 November 2002 December 2003
Thread: Fitting a licence Thread: Suggestion for new Thread: License Question
on a small place license (Fair use and ownership)
{Ostrom, 2003 {Davel, 2002
#464} #447} {Myers, 2003
#445}
{Brown, 2003q
#465} {Brown, 2002d {Prodromou,
#448} 2003n #446}
Figure 6.12 Q&A threads example
265
Implicit Q&A threads may also be identified within deep threads when referring to
procedural issues or themes that are or get marginalized (figure 6.13).
{Garlick, 2006 #836}
{Keller, 2006(i) #2}
Main Topic Deadline?
{Garlick, 2006(ii) #3}
Four Weeks but flexible
Figure 6.13 Implicit Q&A threads example
The third category comprises of composite threads of deep linear type: these threads
subsist of consecutive answers to the previous discussant's comments without any
reverting to a previous post or more than one answers to the same post (figure 6.14). We
classify as long-line threads any thread with more than two posts, where each post
responds to the previous one without direct links to other posts or time jumps (e.g. post
no3 replying directly to post no1). A first category of such posts are ones that involve
only two persons that exchange multiple messages. This is likely to happen where the
discussion after a point becomes too esoteric for anyone to interfere or when the long-
line thread actually comprises of only three posts. A further variation of the long-line
thread is one of threads that take place only between two individuals but transcends the
time unit of the month or thematic unit of the thread. The former sub-category
resembles the equivalent category of the q&a threads.
266
September 2002
Question on license options
{Reeves-McMillan,
2002a #437}
{Brown, 2002b
#436}
{Reeves-
McMillan, 2002b
{Brown, 2002b
#436}
{Reeves-McMillan,
2002c #439}
{Brown, 2002ci
#848}
Figure 6.14 Long line thread example
Long line threads that take place between more than one people present again a series of
variations. The straightforward multi-participant long line thread is possibly the most
common in the case of the “cc licenses” mailing list. Similar to the patterns of three
posts threads, we have deeper threads that transcend both the time unit of the month and
the thematic area unit of the thread. What is the most interesting element in such threads
is that the discussion development follows a strictly incremental pattern and the
participants do not revert to any of the past messages other the previous one, not even
the initiator of the thread.
267
Finally, the fourth category comprises of deep tree-like threads (figure 6.15). These tend
to either revert to previous topics or break into implicit sub-topics and sometimes when
complexity increases or a particular aspect of the discussion acquires enough
importance to the opinion of one of the discussants to actually create a new explicit
thread. We may divide them again into smaller subcategories in accordance to the kind
of forking they illustrate. A first sub-type is one comprising of those threads where the
series of incremental comments made by different participants is interrupted by a
comment that is based on two postings. The discussion then either splits into two
discussions or the most powerful line is the one that survives. A second sub-type is one
where the trajectory of incremental comments is interrupted as a result of a posting that
receives more than one responses. This happens quite often at the beginning of the
thread if a single posting received more than one responses that may or may not be
followed further. A third subtype is one that includes either multiple branches, or
branches that link to other threads or transcending the time unit of the month or a
combination of all three characteristics.
The interaction patterns in the early Creative Commons discussion period compare to
ones related to the discussions taking place in a more mature environment as seen in the
case of the CC v.3.0 discussion. As mentioned above, though we are dealing with a
single thread, we may trace the emergence of implicit sub-threads that resemble the
thread structure of the early Creative Commons threads we have explored in the
previous paragraphs.
268
November 2003
Thread: Recent Questions Thread: A questions
Thread: Compilation asked on this list about Share-Alike
Copyright
{Young, 2003 {Randolph, 2003
#357} {Shah, 2003a #356}
{Collins, 2003d
#866} #482}
{Prodromou,
{Swartz,
2003b #359} {Gruettmueller 2003b #358}
{Prodromou,
, 2003j #865} 2003q #483}
December 2003
{Shah, 2003b
#867}
{Gruettmueller
, 2003k #866}
Figure 6.15 Tree-like thread example
Orphan as well as Q&A threads set the background and boundaries of the discussion. It
is in looking into such threads that we appreciate some of the non-stated rules of the
regulatory Commons.
Long-line threads with normally two participants are the most expressive form of the
fragmentation of the regulatory Commons and a rather common type of interaction on
the “cc licenses” mailing list. In such cases the discussion evolves incrementally
between the two or more participants, each making a comment most commonly only to
the immediately previous posting. As a result someone that has no good knowledge of
the specific discussion or the overall thematic horizon of the list is incapable of
following the subject.
269
This “short” memory of the mailing list is indicative of the way in which innovative
elements are introduced in the discussion: innovation in the list is a rather slow and
inefficient process; it happens after lots of iteration and repetitions. The same theme
may be appearing repeatedly over the years and only when it manages to assume
enough support is able to appear as a change in the text of the licences themselves. The
case of the incompatible Free/Open licences is a classic example, appearing as an issue
as early as in 2003 and being partially resolved only in early 2007.
The “memory” of the list involves certain participants that we may call “cultivators”
and which are not necessarily members of the CC staff. These are the really active
participants that initiate or participate to most of the threads and thus have a good
overall picture of the discussion. These are able to cross-fertilize the long-line threads;
to link the otherwise dispersed orphan and Q&A threads; to move two or more posts
back and in that sense violate the strictly waterfall-like model of most of the
discussions; and finally to be the links in the tree-like threads that if they evolve in to
deep threads, will lead to a series of implicit long-line threads.
6.4.5 Cultivating the regulatory commons: Static and dynamic
cultivators/ controllers in the CC project
The development of the discussions seems to be driven by two opposing trends: to close
and to open at the same time. The tendency to close relates to the incremental nature of
the discussion. As the discussion proceeds in order to participate it is necessary to
follow the interactions and be aware of the overall framework of the discussion.
The patterns of interaction confirm three sets of features for the “cultivators” of the
commons: first, good knowledge of the pedigree of the latest message in the thread;
second, understanding of the overall discussion; third effort to re-frame the discussion.
It is important to make explicit at this stage that the representation of different thematic
areas in the CC licences is not the result of a natural selection process or at least not
entirely 'natural'. This is the reason why we are talking about cultivation of the
regulatory commons rather than about their evolution. The idea of cultivation introduces
270
a series of mild controllers that are essentially influencing the development of the
regulatory commons towards a certain direction. We may classify such controllers into
two broad categories, static and dynamic cultivators. We have already presented in
sections 6.1 and 6.2 a series of static cultivators, that is controllers that are put in place
and then they operate as a framework channeling the development of the regulatory
commons: the licences themselves, the vocabulary used, and the medium where the
discussion takes place constitute the conditions upon which the regulatory commons are
founded in the case of the CC project. The incremental, fragmented and repetitive
nature of the interactions (as we have seen in section 6.4.3) is also a framing factor
though it is more the result of the operation of all the basic static regulatory and as such
it could be characterized as a secondary static controller.
Even more interesting is the case of dynamic cultivators. These are actors that not
merely frame the discussion but literary interact with the various participants to the “cc
licenses” mailing list to steer the discussion towards a certain direction. The dynamic
cultivators are essentially those participants with the greatest contribution to the
discussion over the “cc licenses” mailing list both in terms of volume of postings and
ability to set the agenda and direction of the discussions (sections 6.4.1 and 6.4.2). We
may broadly identify two types of dynamic cultivators: members of the CC staff and
other participants. This differentiation is important as it indicates the degree of control
that the CC exercises over the development of the licences. The analysis of the
participation patterns (section 6.4.1) indicates that the contribution of the CC members
of the staff is substantial but is neither quantitatively nor qualitative the most significant.
The analysis of the “cc licenses” mailing list reveals that members of the CC staff are
intervening in five ways: First, they present the ground rules for the way in which the
discussion is going to take place; second, they sum up the discussion to a particular
point; third, they provide answers on specific questions; fourth, they provide their
experience from discussions having taken place previously over the mailing “cc
licenses” mailing list; five, they resolve an existing dispute usually by issuing a
particular document presenting the outcomes of the relevant discussions. The
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interventions by members of the CC staff are particularly mild and unobtrusive; hence it
is rarely the case that they cause any sort of controversy on the list. On the contrary it is
in many cases that their interventions are there to pacify very intense discussions.
Dynamic cultivators that are not members of the CC staff tend to have a strong practical
interest in the CC development or a conscious ideological position. Other participants
with practical problems arising from the use of the CC licences are also likely to
participate but not in the extent and for the time the dynamic cultivators do. For
instance, Prodromou is interested in the issue of dual or multiple licensing and the
miscibility of material of different licensing origins [e.g. (Prodromou, 2003b; 2003c;
2003d; 2003g; 2003i; 2003n)] as he is the creator of wikitravel (Prodromou, 2003h) and
this is the problem he mainly faces. Prodromou also views things from the perspective
of the developer, and is an active member of the Debian legal mailing list and as such is
interested in the compatibility with the DFSG (Prodromou, 2006a; 2006b; 2006c).
Keller is more interested in having the autonomy of the author being preserved in terms
of her making the decision on certain areas that are still ideologically tense (Keller,
2006a; 2006b; 2006c). London (2006)} and Myers (2006) express the opinion that the
user should not be underprivileged in comparison to the creator. Hanckock (2006) and
Linksvayer (2006) are more interested in being compatible with the FSF anti-DRM
policy rather than being merely fully compatible with the DFSG.
This is what differentiates a dynamic cultivator from a mere active participant: the
former has a constant presence on the mailing list, a good knowledge of different
aspects of the CC project and is not focused solely on a specific topic of interest; the
latter is interested in solving specific issues arising from the use of CC licences and is
only occasionally a contributor to the “cc licenses” mailing list. Dynamic cultivators
who are not CC staff are much more common and feature the same characteristics as the
latter with two major differentiations: first, they do not set rules of the discussion as
they do not have any institutional legitimization and second they are very likely to
provoke controversy, having specific political or practical agendas they seek to achieve.
A classic example of practical interventions are those of Prodromou, the founder of
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wikitravel, that seeks to achieve compatibility between different versions of the CC
licences as well as CC licences and other open content licences since his first presence
on the list in 2003. Prodromou has contributed with his interventions to the solution of
the problem of incompatibility of subsequent to v.1.0 CC licences and had an enormous
contribution in the steps CC is taking in achieving compatibility between the CC and
GNU-Free Documentation Licence with v.3.0 of the CC licences. Prodromou has also
contributed to the framing of the discussions regarding the DRM clauses in v.3.0 of the
CC licences as a de-facto representative of the Debian Community. Similar from an
ideological viewpoint are the contributions of Moeller or London on issues of minimum
freedoms that should exist in all CC licences and the NC licence element respectively.
The first has actively pursued an agenda of establishing minimum common principles
for all CC licences and the latter has actively sought an anti-NC agenda for practical
(lack of clarity) as well as ideological reasons (not really a free licence according to the
FSF definitions).
It is interesting to note that the interventions of non-CC staff dynamic cultivators
increase over time and as the project evolves. It is also important to note that the
founder and CEO of the CC project, Lawrence Lessig, is visibly absent from the
discussions occurring over the mailing list. Lessig's contributions are rare and other than
the case of his Newsletter that is always being published in the context of some sort of
funding effort [e.g. (Lessig, 2005i)], they are always the result of an issue that he deems
as particularly important to cause his intervention. For instance, Lessig has intervened
on issues that related to the relationship between CC and the FSF, issues of minimum
principles in all CC licences and compatibility issues between the different types of
licences, as well as the definition of the NC licence element. Lessig's minimal
contribution as well as the CC staff unobtrusive cultivation efforts, to a great extent
verify the model of minimal intervention in relation to the development of the
regulatory commons. In addition, the emergence of non-CC staff dynamic controllers is
to a great extent a sign that the community becomes more and more self-sustained and
may continue to develop on its own.
The role of dynamic cultivators is of great significance to the development of the
regulatory commons as they operate together with the static cultivators in order to give
273
to CC its specific character. The dynamic cultivators operate as the regulatory memory
of the mailing list: with only the static cultivators in place the whole development of the
regulatory commons would be directed towards increasing closeness and repetition: as
we have seen in section 6.4.4, the interactions follow a waterfall-like pattern that makes
the transition to an earlier stage of the discussion very difficult for someone that does
not have a very good knowledge of the overall discussion or at least the specific thread.
In a depth of time because of the multiplicity of threads and the multitude of postings it
is virtually impossible for someone that is new to the discussion to search all archives to
find whether an issue she is interested in has been covered or not. As a result it is very
likely that there are going to be many repetitions in the discussions or that the
representation of a particular real life case is lost in the pile of subsequent messages and
cases. The dynamic cultivators are essentially the actors in the development of the
regulatory commons that are able to cross-fertilize the discussions both in terms of time
(relevant discussions that took place in different periods) and in terms of topic (relevant
discussions that have commonalities though they were posted under a different thematic
framework, e.g. different thread or implicit thread). The dynamic cultivator that has
participated in many of these treads has the ability to link them with each other and
hence to allow a capitalization of the relevant results in terms of them being internalized
by the regulatory commons and then expressed in the formal regulatory document of the
CC licences or in some form of CC-issued guideline.
The dynamic cultivators are also the ones that in most cases will cause (non CC staff) or
temporarily settle (CC staff) a controversy and in that sense the ones that will fuel the
further evolution of the relevant discussions. They are the ones that represent
technologies, communities and persons on the mailing list and the ones that accelerate
the process of development of the regulatory commons. They operate in that sense like
enzymes in the regulatory process and are the ones that to a great extent re-introduce the
openness by allowing new topics to enter; bringing about topics that have been lost in
past postings but are relevant; or by critically approaching concepts and issues that seem
to have been settled. If the static cultivators are the ones that give the original strategic
direction and in that sense close the discussion, the dynamic cultivators are the ones that
make the necessary subsequent tactical maneuvers that allow the avoidance of sclerosis
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and, in that sense, open the discussion in a range of novel directions. The fact that most
of the dynamic cultivators are not CC controlled is an indication of how the model of
regulatory commons that CC establishes has as its conscious objective to allow as much
from the native regulation and many from its de facto representatives to be expressed in
the formation of the formal regulatory forms, i.e. the CC licences.
6.5. Conclusion
In this chapter we have presented various aspects of the Creative Commons project
ranging from its world-view (section 6.1) and the way it has affected the choice of
specific means for the achievement of its objectives (section 6.2) to the operation of the
licences (section 6.3) as well as the participation (section 6.4.1), thematic representation
(section 6.4.2 and 6.4.3) and interaction (section 6.4.4) patterns on the mailing list used
for their development. The investigation of the diverse facets of the CC project has
resulted in an exploration of the different cultivation techniques and the way in which
the regulatory commons are developed in the model of Common Law (section 6.4.5)
In this trajectory we focused in particular on the way in which the problem of
supporting the creation of a vibrant Public Domain or Commons is gradually
transformed to a problem of increasing the autonomy of the creator so that she is able to
express the regulatory terms under which she wishes her word to be disseminated
(sections 6.1 and 6.2). The re-framing of the Commons problem as a regulatory
autonomy problem (section 6.3) is reflected on the way in which the patterns of
interaction and participation are formed as well as on the organizational transformations
of the CC project that increasingly lead to the formation of a more explicitly political
branch of the project, the iCommons project (sections 6.4.1 to 6.4.5). This is an
expression of the fundamental philosophy of the CC project not to force the creative
commons through techniques of coercion but rather to allow their emergence through a
process of enrolling the creator in the use of regulatory tools that support the creative re-
use of material. The following chapter analyses and discuses in detail these
transformations seeking to frame the problem of the cultivation of the regulatory
commons and through such a process the support of the creative commons as the
primary objective of the CC project.
275
Chapter Seven Discussion of the CC Project
7. Introduction
The objective of this chapter is by critically assessing the results from the presentation
and analysis of the CC project that took place in chapter six to explore the transition
from the regulatory to the creative commons.
As we have seen in chapter three (section 3.4), a key aspect of the literature on Public
Domain [e.g. (Boyle, 1997a)], the CC critique [e.g. (Elkin-Koren, 2005)] as well as of
the critical Copyright literature in general [e.g (Lange, 1981)(Littman, 1991)(Wagner,
2003)(Fisher, 1999; 2001; 2002)] is that Intellectual Property and the Commons are
constructed entities. The admission of the constructed nature of a regulatory instrument,
in the same way as that of any formative context, entails that it is potentially capable of
being changed. In chapter four (section 4.1.2) we have shown how construction in
Lessig’s work amounts to change (Lessig, 1996b).
While, however, this emancipating message has been the core point of the relevant
literature, a closer look in its thematic reveals a lack of interest in the stage of regulatory
development and a focus solely on implementation and enforcement issues.
This chapter, by bringing together the conclusions from all previous parts of this thesis,
seeks to present CC as a project that primarily aims at allowing the creative practices on
the Internet to be expressed in the CC licences. Even more importantly, it shows how
and why this effort does not run the risk of being diverted to an effort to produce a
proprietary set of licences as the critique of the CC project implies (section 2.5). It
illustrates which are the specific instruments used by the CC project in order to establish
a Commons in the regulatory level, the regulatory commons (see analysis in section
6.4.5). The core idea of a regulatory commons is that all participants have access to the
formation of the regulatory instrument in non-discriminatory terms. Finally, chapter
seven explains how this project of cultivating the regulatory commons is framed in such
a way so that it may produce a creative commons.
276
The chapter is divided in two parts: in the first part (sections 7.1 to 7.1.3) we revisit the
conceptual framework developed in chapters four as a result of Lessig’s work to
illustrate how it is revised in the face of the insights we have gained from the analysis of
the CC project in chapter six. This first part displays how Lessig’s theoretical work
explains the Copyright – Technology interaction problem (chapter three) as a regulatory
distantiation problem; it further presents various regulatory construction techniques that
point at more cost efficient solutions and explains which are the constituent parts of a
regulatory strategy geared towards such a direction.
The second part (sections 7.2 to 7.3) of this chapter focuses on the CC project to explain
how these mechanisms are actually employed by the CC project in order to reduce
regulatory costs and what it reveals regarding its character as a regulatory commons
project. The second part achieves such objectives by emphasizing three analytically
distinct features of the CC project: first, its framing or seeding functions; second, its
regulation cultivation-construction operations; and third, the political dimension of the
CC project and the nature of its output.
7.1 Commons and their regulatory conditions
In this first section we link the critique of the CC project (chapter two) to the literature
on the Commons and Copyright (chapter three) in order to explore the implications of
the assumption of approaching both Commons and Copyright as constructed entities.
Lessig’s ontology of regulation-as-associations and his work on the ways of their
construction (chapter four) (Lai, 1999; Lessig, 1989; 1993; 1995b; 1995c; 1995d;
1996b; 1997c) constitutes the linking between the two sets of literature.
The critique of the CC project [e.g. (Elkin-Koren, 2006a; Berry and Moss, 2005;
Chance, 2006a; Klang, 2006)] is always a good starting point for an investigation of the
CC project’s features for the obvious reason that it allows the identification of points of
tension within the project. However, the same critique is useful for yet another reason,
perhaps of even greater importance: it highlights the non-contested aspects of the CC
ontology; what is taken for granted particularly with respect to the Commons, the Public
277
Domain or regulation. It is these moments of silence in the CC critique that speak most
loudly about the nature of the CC project.
A careful look into the CC project critique reveals that there is a lot of talk about the
Commons and the potentially detrimental effects of the CC project on their development
(section 2.8), but the Commons as such never really appear. To state it simply, the
Commons in the CC critique literature are equaled to their regulatory conditions.
The conceptualization of Copyright and the Commons as artificially constructed terms
of a regulatory nature is the first step for a critical assessment of their content. In that
sense Elkin-Koren’s (section 2.3) Boyle's (section 3.4) and Lessig's (section 4.4)
conceptualizations coincide. The constructed nature of the Commons is to a great extent
based on assumptions regarding the economics that explain the innovation and
creativity process. Being critical to such economic assumptions entails a critical stance
to the regulatory assumptions upon which the Commons are based. To state it
differently, by choosing an alternative to the mainstream economic model for creativity
and innovation, a different regulatory model is also possible and hence the balance
between the Commons and Copyright may -at least in principle- be accordingly shifted
(section 3.4.2).
This change of the conditions that support a particular economic model is closely linked
in the CC related literature of the last two decades to changes to the technological
assumptions of the creative activity (sections 3.1 and 3.2). The work by Moglen [e.g.
(Moglen, 1999; 2003)] and Benkler [mainly (Benkler, 2000; 2001; 2002; 2006)] is
emblematic of such an approach that is most clearly expressed with 'Moglen's Law'
regarding a system supporting innovation and creativity that comes to oppose the
assumptions of the incentives model found in the classic Copyright system and which
we have seen in chapter three (Moglen, 1997).
Two aspects of this alternative economic model are of relevance to this thesis: first, that
in an Internet environment, creativity may be materialized not because of the existence
of the necessary incentives but as a result of the absence of obstacles (Moglen, 1999);
second, that this model is based on having the intelligence or control of a network at its
ends, not its center (Saltzer, Reed and Clark, 1984).
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Lessig’s earlier and less popular work, as we have shown in chapter four (sections 4.1
and 4.4), is not focused on Copyright issues, but rather on issues of regulatory
constructivism and as such deals with an issue that the Commons and CC literature
leaves unanswered: the problem of participation in the construction of a regulatory
instrument (sections 4.4.1 to 4.4.3). For, while the Copyright, Commons and the CC
critique literature emphasizes the constructiveness of the regulatory conditions of the
Public Domain they are not interested in answering the question regarding the ways in
which access to its formation should be enhanced.
On the contrary, Lessig in his social meaning (Lessig, 1989; 1993; 1995b; 1995c;
1995d; 1996b; 1996c; 1997c) and Cyberspace regulation series of writings (Lessig,
1995e; 1996a; 1996d; 1996e; 1996f; 1996-1997; 1997a; 1998a; 1998d; 1999f) identified
the problem of the functions of Public Regulation being increasingly performed by
private regulatory instruments (section 4.4.1) and sought to explain, first, why this is a
problem (section 4.4.2) and second, how this problem could be resolved (section 4.4.3).
We have also referred to these aspects of Lessig’s work in greater detail in chapter four
(section 4.4) and we will return to them in this chapter as well. In the following section
we will explain why it is that the issue of having access to the formation of the
regulatory content of Copyright and the regulatory conditions of the commons is
important, as the analysis conducted in chapter three indicates.
7.1.1. Regulatory distantiation in the language of association
construction
The critical literature review in chapter three has left us with the basic conclusion
(section 3.6) that Copyright in its relation with digital technology is exhibiting a pattern,
which we have described as the distantiation phenomenon: while Copyright in its
application involves greater segments of the population, the participation in its
formation is gradually distantiated from publicly accountable bodies. Lessig (1996d;
1996e; 1996f; 1996-1997; 1999e; 2000a; 2000c; 2001b), as we have seen in chapter
four, presents the same problem as one not confined in the realms of Intellectual
Property Rights but one being related with Cyberspace regulation overall (section
4.4.1). Finally, in section 4.5.1 we have seen how Black’s work emphasizes the
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importance of studying the process of the regulation building and increasing the
participation to the formation of regulatory instruments [e.g. in (Black, 2000; 2001a;
2002a)].
Combining Copyright literature, Lessig’s work and the relevant regulatory theory we
identify three types of features characterizing the distantiation phenomenon: First, there
are features related to the alienation of the public from the means of regulatory
production (section 4.4.1); second, there are features that relate to the increasingly more
pervasive and obtrusive application of regulation (sections 3.1 and 3.2.); and third, there
are features relating to the adverse effects of distantiation expressed either in the form of
infringement and the costs of regulatory enforcement (section 3.1) or in the form of
costs for creators that are also potential infringers (section 3.3).
All the aforementioned aspects of the distantiation phenomenon highlight a subtle
aspect of the regulatory nature of Copyright that as we have seen in the previous section
is not given great attention: Copyright issues are not exhausted in their regulatory
content; their main target is to create links or associations with those actors upon which
the relevant regulations are to be applied. This is the point where Lessig’s early work on
regulation as association building (section 4.1) becomes relevant by providing a
vocabulary for describing the distantiation problem as an association construction
problem.
Failures of Copyright enforcement may be read as association construction failures.
Lessig in his social meaning series of papers (Lessig, 2005k) provides a number of
mechanisms for association constitution and assesses their costs in order to suggest
which mixture of mechanisms could support the most efficient form of a regulatory
strategy (sections 4.1.2 to 4.1.4).
By approaching distantiation as an association constitution issue we manage to
transcend the distinction between regulatory enforcement and production: objective of
the regulatory effort is to produce a set of associations; these associations may be
constituted either at the stage of regulatory construction (as in Lessig’s model presented
in sections 4.1.2 to 4.1.4) or at the stage of its enforcement (as in the case of Lessig’s
direct inhibition technique presented in section 4.1.4 and seen as enforcement in section
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3.1) or in both instances. Clearly, a regulatory instrument that suffers from distantiation
has a greater cost from one where access to its construction phase allows the
associations to be organically created before they are actually implemented.
The following section describes in detail the reasons why such a situation is problematic
by extending Lessig’s various variables regarding association constitution costs.
7.1.2. Modalities of Regulation and Regulatory features; Native and
Exotic Regulatory Forms
We have seen in chapter four how Lessig (1998d; 1999f) employs the model of the four
modalities of regulation (Law, Technology, Markets and Social Norms) in order to
explain the forms in which regulation may appear in an Internet environment (sections
4.3 and 4.4). Each of the regulatory modalities has a different degree of immediacy, that
is, the number of actors or institutions that mediate between the regulatory content and
its actual enforcement (section 4.2). For instance, technology is a much more immediate
form of regulation compared to the law: the restriction or regulation of a Technical
Protection Measures is much more immediate in effect than a court decision and its
enforcement through the judicial and police system.
We need to extent this model by differentiating between regulatory modalities and
regulatory features. There are regulatory modalities such as the law that are build from
their inception in order to serve regulatory purposes and have an explicitly political
character that is accepted and internalized by the population. Nevertheless, there are
other modalities, which have undeniable regulatory features but are built in order to
serve more utilitarian purposes. In such modalities the regulatory character and political
nature are still there but stay invisible in the background. There are artifacts that by
design appear to be regulatory modalities, such as a contract or a Digital Rights
Management System, and other artifacts that by design appear to serve another purpose,
though they may have regulatory features, such as a torrent tracker regulating the
conditions of uploading/ downloading.
Clearly, an artifact that has regulatory features tends to create associations in a far easier
(i.e. less costly) way than an artifact that explicitly constitutes a regulatory modality.
We may derive this conclusion by employing some of Lessig’s (1998d; 1999f) variables
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presented in chapter four (sections 4.1.4, 4.2 and 4.3) using the example of the DRM
system and the torrent tracker. While both of them may appear to fall under the same
modality of regulation (i.e. technology) and hence have in accordance to Lessig’s
analysis the same level of immediacy, the torrent tracker allows a greater degree of
internalization as it will most probably not produce any direct resistance to its normative
content. In Lessig’s terms the more a regulatory instrument has the features of the ritual
(Lessig, 1995c) and the less it has the features of direct inhibition, the more likely it is
to be adopted (section 4.1.4): a ritual is an association building technique based on
influencing directly behavior, that operates coercively, has the elements of repetition
and, most importantly, does not appear as coercion. The regulatory features of the
torrent tracker are diluted within its other more functional features, where this is not
necessarily true for a DRM system.
However, even a DRM system may appear to have regulatory features and not to appear
as regulation itself if it manages to present the features of the ritual presented above. In
summary, the more an artifact seems to be integrated in daily routines, the more native
it is.
It is these native regulatory structures that the Copyright regulatory mix of technology,
licences, meaning and market has to compete with. Unfortunately, the latter is far too
exotic in the sense of external and distantiated to compete with the native regulations
and hence the construction of the relevant associations is extremely costly; it
increasingly requires direct coercion methods such litigation against end users or the
introduction of draconian legislation such as the proposed EU second Enforcement
directive. This exotic regulation also tends to be “formal”, in other words it is expressed
in an institutionalized form of regulation such as national or international laws.
The attempt to enforce regulatory forms that are essentially competing with native
regulatory forms results in producing the costs (active and passive) that we have
described in the previous section. Such costs may be attributed to the failure to produce
associations or the friction that existing association cause to native forms of regulation.
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The following section returns to the issue of regulatory construction to illustrate how the
concept of native regulatory forms may be employed in order to create a coherent
framework for assessing a regulatory strategy.
7.1.3. An end-to-end model for regulation development: the
regulatory commons
The native regulation concept presented in the previous section indicates that a
regulatory strategy seeking to reduce both active and passive regulatory costs and hence
to satisfy both the needs of the classic Copyright enforcement and Commons objectives
should focus on the construction of regulatory instruments as close to native forms of
regulation as possible.
At this stage, we need to describe the limitations that such a model should have in
relation both to the classic proprietary Copyright project and the proponents of the
Public Domain.
A first limit to the introduction of a regulatory instrument that would seek to express
native regulatory forms relates to the existing rights holders and the protection afforded
to them through the existing Copyright System. Moglen’s Law (1997; 1999) is against
all forms of friction that could obstruct creativity as enabled by the end-to-end
architecture of the Internet and hence it could be seen to object legal restrictions all
together. This obstacle could be removed through (a) by respecting and acknowledging
the existing Copyright system and (b) by introducing a voluntary element in the removal
of restrictions. We have described in section 6.2 how Lessig includes both these two
elements in his Fair Use Plus concept that he introduces with his 2005 series of
Newsletters (Lessig, 2005k). According to the Fair Use Plus concept that is
implemented with the CC licences, these freedoms being compatible to the nature of the
Internet as an end-to-end architecture are expressed in the form of Copyright licences
that may be awarded only by the rights holder. In summary, while there is an effort to
present a regulatory instrument that resembles native regulation, provision is made so
that there is interfacing with the existing legal system.
In addition, as illustrated in section 6.4.2 referring to the thematic representation or the
“cc licenses” mailing list, the various participants are particularly interested in reducing
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legal friction in order to share, reuse and remix material. As the findings in the same
section indicate, the reduction of friction is required both for obliterating permissions
but also for clarifying existing rules or even the content of the CC licences.
A comparison of the literature concerning the Commons (sections 3.3 to 3.5) and
Lessig’s early work (sections 4.1 to 4.4) allows us to understand the difference between
the conceptualization of the Copyright-Technology interaction as a Commons problem
from its conceptualization as a regulatory distantiation problem (section 3.6). In the
former case, the problem is located in the level of the regulatory content that in the case
of Copyright is seen as not corresponding to the existing creative patterns and hence
requiring amendment. However, while in accordance to the native regulation model
there is a certain degree of agnosticism concerning how this regulatory content should
be formed, the CC critique literature presents the whole problem as one between two
opposing models (sections 2.6 to 2.9): one of no-regulatory restrictions, the Commons,
and a second of regulatory restrictions, the Copyright system.
In sections 2.5 and 2.6, we have seen that the Commons are viewed by the CC critique
as a space without any regulatory conditions or with a minimum of regulatory
conditions that should exist across all contexts. This model suffers from assuming that
the economic model expressing the creative conditions on the Internet is or should
remain static or that there is an essential set of conditions for the Commons that should
be applied across all contexts. There are three classes of problems with such an
assumption: The first is an internal consistency problem: if Copyright and the Commons
are constructed, as this stream of literature assumes, they cannot have essential features
at the same time. The second relates to the problem of regulatory distantiation: if we try
to impose externally a specific version of the Commons in a context where it is not
accepted or where the dominant mode of native regulation is different, then it is very
likely that the same passive and active regulatory costs as in the case of the Copyright
project will occur. The third class of issues relates to the Commons as an absence of any
regulatory conditions and the native regulation issue: it is very unlikely that any human
activity would be void of any regulatory form and hence a model of the Commons
seeking to impose a non-conditions regulatory content is likely to be colonized by
native regulation and possibly be prohibited from operating as a Commons.
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If, contrary to the CC critique model, the Commons problem is seen as a symptom of
the more fundamental regulatory distantiation problem (sections 3.6 and 4.4.1-4.4.2),
then the means employed for its solution could be seen to be of a different level all
together: instead of looking for regulatory tools to support the creative commons we
should focus our interest in the identification of tools that would allow the expression of
native regulatory forms and, if the creative commons is indeed the underlying
regulatory content of native regulatory artifacts, this to be expressed as well (section
4.4.3).
The critical review of Lessig’s work in chapter four has identified four techniques of
association construction (section 4.1.4) and one technique for association constitution
that we call cultivation (section 4.4.3). These are useful for understanding the features
that the tools for achieving proximity to native regulation should have.
Lessig (1995c) is in favor of defensive constructions in the sense that they are closer to
existing sets of associations and hence have a lower construction cost (section 4.1.3).
Similarly the tying concept allows the strengthening of a set of associations by relating
to a specific positive meaning. The concept of ambiguation confuses the costs by
associating a text with more than one meanings and thus blurring its non-desired
meaning (sections 4.1.3 and 4.1.4). Advancing all these models with the native
regulation concept, this thesis argues that there should be always an anchor point in the
efforts of tying or defensive construction seeking to associate with native regulatory
forms and native forms of association, else even defensive or tying efforts could still
incur high costs of construction.
Concluding this section in relation to native regulation we should highlight the use of
the FLOSS model in Lessig’s (1996-1997) early work as a paradigm for the way in
which private regulation should be built with public values embedded or, in the
terminology of this chapter, how to employ a model for the cultivation of native
regulatory forms (section 4.4.2). Lessig uses FLOSS in his early work (Lessig,
1997a)(Lessig, 1996a) to illustrate how a non-legal regulatory modality, technology,
could be constructed in a way so that the public could in principle have access to its
construction. Lessig is primarily interested in this issue as it seems to solve the problem
of what we call in this thesis the distantiation phenomenon and allows the establishment
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of the regulatory commons: an essential facility of regulatory nature to which everyone
has access in non discriminatory terms (sections 3.5, 4.4.2 and 4.5).
By combining the concept of the native regulation we have developed in this chapter
with the one of the regulatory commons expressed in Lessig’s use of the FLOSS model
for assuring non-discriminatory access (Lessig, 2001b) to the means of regulatory
production, we have a first sketch of the way in which a first solution to the distantiation
problem could be provided: not by directly producing a set of rules for the support of
the creative commons but by allowing native forms of regulation to be expressed in an
environment of regulatory commons. In such a model, the associations are not
constructed by an external meaning manager as described by Lessig in his four types of
association construction techniques we have seen in chapter three, but are rather
cultivated allowing the native associations to be expressed.
In this first part of the discussion chapter we have presented how the earlier theoretical
chapters two and three could be combined in a creative way so that they produce an
extended version of Lessig’s theoretical work presented in chapter four and allow a
better understanding of the distantiation phenomenon presented in chapter three as well
as provide some first answers to the CC critique presented in chapter two.
The following section deals with the specifics of how such model has been applied by
Lessig in the CC project, the particular means used and the how the basic elements of
Lessig’s original conceptual model may be further expanded.
7.2 The CC project as a construction-cultivation project
In this section we explore the ways in which the Creative Commons project constitutes
an effort to allow native forms of regulation to be expressed and hence to resolve the
problem of regulatory distantiation that seems to be the cause of the eradication of the
Commons as illustrated in section 7.1.1. The use of the language of associations in order
to describe the distantiation problem (see sections 3.6, 4.4.1, 4.4.2 and 7.1.1) indicates
that the CC project is to be seen primarily as an association building project.
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We may describe this process of constituting the regulatory commons that leads to the
development of the CC project as an association construction-cultivation process: The
construction part of the association constitution process may also be seen as a seeding or
framing process since it provides the initial directions and impetus for the subsequent
development of the project. This aspect of the CC project in the analysis chapter
(section 6.4.5) is presented through the heuristic of static cultivators: the static
cultivators allow setting the boundaries of the project and they are static in the sense
that they do not dynamically interact with the participants to the process of regulatory
production. The cultivation aspect of the CC project is more geared towards the
establishing of the conditions that allow the active expression of the ends of the
regulatory network in non-discriminatory terms and has been described in section 6.4.5
of the analysis chapter. The main tool used for the advancing of cultivation are the
dynamic cultivators which are participants that are able to transcend some of the issues
related to the features of the forum on which the licence development takes place (the
“cc licenses” mailing list) and push the interactions forward.
7.2.1 Seeding
We characterize the first phase of development as seeding or framing precisely because
it constitutes a conscious effort by the CC project to create the conditions for the
cultivation of the regulatory commons. The process could be described as seeding rather
than construction in the narrow sense of the word precisely because CC as an
organization uses so many of existing elements (sections 6.1 and 6.2) that it is hard to
say that it actually creates anything novel.
Lessig's four types of association construction techniques we have seen in section 4.1.4
are instructive of how the seeding stage operates. The first thing to note is that the vast
majority of the constructions that the Creative Commons project attempts are of a
defensive nature (Lessig, 1995c): the innovative elements, if any, of the Creative
Commons project have to do with the re-arrangement of existing elements. It is this re-
combination of elements or sets of associations from the past that makes the Creative
Commons a new project. In a sense, following Lessig's own description and CC's
rhetoric on the way in which a creative artifact is always built from existing ones
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(Lessig, 2004d; 2005i; 2005j; Brown, Paharia, Junell and Walker, 2002; Brown, Junell,
Paharia and Walker, 2003), the regulatory hybrid Creative Commons constitutes also
rests on the shoulders of its pre-existing peers. A purely expansive (section 4.1.4)
construction would anyhow be impossible due to the fact that according to our
preceding analysis and Lessig's work the costs for a totally novel construction would be
prohibitive for its establishment. It is the mixture of offensive/ expansive and defensive
elements that gives to each construction its unique character and it is the creativity in
the selection of such elements that renders the CC project a creative regulation (section
6.2) project: the need to use elements from existing sets of association in a novel way in
order to provide a solution to a new problem.
Three instruments are used for the seeding purposes: first, the CC licences themselves
(section 6.3); second a set vocabulary used for the interactions between the participants
(section 6.4.5); and third the specifications of the iBiblio mailing lists (section 6.2).
The obvious or external regulatory operation of the CC licences is experienced once
they are approved by the CC and are used for the sharing, reuse and remix of creative
content. This is a regulatory operation external to the CC project: CC is explicitly not
involved in any of the regulatory relationships between the licensor and the licensee
(section 6.3).
The more subtle and relevant to our research regulatory aspect of the CC licences is the
internal to the CC project operation: the licence is essentially a thematic map of the
issues discussed over the “cc licenses” mailing list. A look into the themes discussed by
the various participants on the list indicates that they follow the structure of the licence
itself. Different Licence Elements or various sections of the licences such as the
provisions related to the treatment of Digital Rights Management systems are the
framework on which the discussions operate [e.g. (Linksvayer, 2006;Prodromou,
2006b; Keller, 2006d; Keller, 2006c; Keller, 2006a; 2006b). In the early period of
discussion it is also the case than when an issue that is unrelated to the CC licences
appears, the members of the community themselves are the ones to filter the
participation by requesting the comments to follow the same framework [e.g. in
(Prodromou, 2003d; 2003i; 2003j; 2003k; 2003g; 2003f; 2003l; 2003m)] .
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The interactions in relation to the licences may be classified in three broad categories:
first, discussions related to the formation of a particular version of the licence; second,
discussions that relate to the operation of the licences and have to do with their
applications without questioning their content or requesting a revision; third,
interactions that relate to the CC and the licences in the level of principles or ideology
(sections 6.3, 6.4.3 and 6.4.4).
The fact that the licences are subjected to continuous improvement and their application
is the constant discussion theme on the mailing list is an indication of openness; at the
same time the thematic boundaries that their structure sets is limiting of the issues that
may be posed. For instance the effort to discuss proprietary licensing solutions in the
early as well as later period of the CC discussion period have been met with the reaction
of the participants to the relevant “cc licenses” mailing list and were never really
discussed (sections 6.4.3 and 6.4.4).
The framing of the interactions on the mailing list is also defined by the vocabulary
used for the various discussions (section 6.4.2). We have identified three types of
vocabulary that are relevant to the framing of the participation process for the
development of the regulatory commons: first, Copyright related vocabulary; second,
CC specific vocabulary; and third, Free Software related vocabulary (sections 6.4.2 and
6.4.4).
The last element of framing the Creative Commons we will discuss in this section is the
“cc licenses” mailing list used by Creative Commons for the development of the
licences. We have already seen in section 6.2 that the idea of using mailing lists for the
creation of a collaborative artifact is actually taken from the FLOSS practices, and the
idea of creating a regulatory artifact in such a collaborative and incremental way is
taken from the original IETF discussion on the IP standards and in the CC prehistory the
idea of using the iBiblio mailing lists for supporting the Eldred case with the OpenLaw
project (Open Law, 2003). Participation to the “cc licenses” mailing list is open to
anyone that would be willing to be subjected to the minimum cost of registration. This
has been done after an early period where no active moderation and monitoring of
registration was taking place and where the levels of spam on the CC list were rather
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high. In the case of the “cc licenses” mailing list there are no formal classes of users
other than the administrator that has access to the details of the users and some other list
management features that are of no direct impact on the way participation is being
structured (section 6.4.1).
However, the choice of a mailing list for the development of the licences has its impact
upon the way in which the interactions take place: messages are posted in a serial way
and the arguments made by different participants develop in an incremental way that
makes an overview of the themes that have been covered in previous discussion not
particularly easy. As a result, it produces a particular form of interaction that tends to be
repetitive and encourages the more active participation by those that are already active
participants. We have already referred in section 6.4.5 to the short memory of the “cc
licenses” mailing list but we will return to this issue in the following section where the
issue of participation filtering is discussed in greater detail. Here the intervention of CC
members of staff also needs to be highlighted: form its outset such intervention seems to
be rather limited and unobtrusive; there is no formal setting of rule on their behalf and
they support particular functions that have to do with the original framing of the
discussions when they start, posing the latest approved CC licence form and setting the
basic rules for the discussion that is to follow.
Schematically speaking, Creative Commons may be seen to attempt defensive
constructions in two broad areas: First preserving existing behavioral practices of
sharing, reuse and remix that will be presented in section 7.2.3; and second, preserve
existing legal concepts and licence practices that are compatible to practices of sharing,
reuse and remix that will be presented in section 7.2.4.
7.2.2 Reverse internalization and cultivation
Besides the construction techniques identified in Lessig’s work (section 4.1.4), as we
have illustrated in section 7.1.3 and also seen in Lessig’s use of the FLOSS model as a
regulatory model in his early work (sections 4.4.2 and 4.4.3), there is also a cultivation
model for the production of associations (section 6.4.4). In this model the associations
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are not produced by a centralized fictional entity as the one of the meaning manager we
have seen in section 4.1.4 but rather by the ends of the regulatory network, the creators
themselves. This process may be characterized as a reverse internalization process.
Reverse internalization is a concept we introduce in contrast to the concept of
internalization we have seen being used by Lessig in section 4.2. Reverse internalization
aims not at imposing the regulatory content upon a set of associations but the
encapsulation of existing associations and their expression in formal regulatory
instruments.
The reverse internalization efforts in the CC project that aim at the production of the
regulatory commons are best described as a process of cultivation rather than as one of
construction. The word cultivation reflects in a more accurate way than construction the
situation where the inputs for the development of the regulatory commons are provided
by the ends of the network rather than its center. Creative Commons as an organization
provides certain directions to the way the project develops specified in detail in sections
6.1 and 6.2; however, as we have seen in the preceding paragraphs, even the starting
features of the project, its seeds, are primarily selected from a range of already existing
associations having as its primary goal to express native regulatory forms into a formal
modality of regulation. In addition even once these elements are there, the CC project
places great effort in allowing the actors subjected to the regulatory power to express
themselves in the regulatory commons.
The idea of cultivation for the development of a regulatory artifact is not new, neither is
the terminology foreign to the researchers of the Creative Commons project. The
concept of cultivation has been used in the CC context before but not in a strictly
defined manner only to denote the process of developing both the CC licences and
creative material that may be shared, reused and remixed (Creative Commons, 2003;
Houweling, 2002; Fitzgerald, 2007). The term cultivation has been used by Hanseth
(2002a) in the context of the development of open technical standards and by Ciborra
(2000b) quoting Itami and Numagami (1992) in the context of Information
Infrastructures. We have seen in section 4.5.1 how Black and Teubner use the term
gardening in a similar fashion [ Black (2000 p.5) quoting Teubner (1992)].
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Hanseth's (2002a; 2002b; Hanseth and Aanestad, 2002; Hanseth, Ciborra and Braa,
2001) and Monteiro’s (2000) work on infrastructures and standards is based on Actor
Network Theory that shares some common ontological assumptions with Lessig's work
as we have already seen in sections 5.1.1 and 5.1.2 (Latour, 2005; Latour and Weibel,
2005). Most importantly the concept of cultivation is employed in order to examine how
such imbroglios, to use the ANT terminology, that operate in environments of great
complexity and uncertainty require a mildly controlled process of development to be
created.
The element of minimum agreement or consensus building that achieves at least a
temporary stability of a standard is also one of the key feature of the Creative Commons
project and we have seen this aspect of the CC project in relation to the agreement of
the transparent copy provisions in CC v.3.0 licences (section 6.4.3).
We have seen in section 4.4.2 that Lessig also views the creation of the Internet
Protocols (Lessig, 1996-1997), a technical standard also being the focus of Hanseth's
work on open standards, Actor Network Theory and the concept of cultivation (Hanseth,
2002a), as the archetype of a Commons on the Internet environment. The general CC
counsel approaches the workings of the Internet Engineering Task Force (Bradner,
1999) as an example of the way in which the iCommons nodes could operate:
“Tomi is the one who said it ought to be about specific working groups, and the
IETF (Internet Engineering Task Force) analogy is one we were all familiar
with. Working groups (nodes) can come and go as they please: form, dissolve,
reform as necessary to accomplish a specific purpose. A node could be an
individual or it could be a corporation; that's not our business to decide. But we
haven't yet investigated how this would play out in all possible scenarios, so
that's why this information gathering process is important to do before we make
a final commitment. Would this concept work for the people and activities that
we want to support?” (Cabell, 2006)
We have referred to the links between the theoretical underpinnings of the CC project as
found in Lessig’s work and the IETF model in section 4.5.3. In this section we need for
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reasons of clarity to relate some of the specific workings of the CC phenomenon to the
IETF. Four aspects of the latter are of relevance: (a) its historical trajectory since its
inception (b) the IETF Structure and Features (c) the IETF Working Groups and (d) the
IETF Documents.
Having started its operation in January 1986, IETF was set up as a quarterly meeting
between U.S. government funded researchers. This idea of a meeting of a community
that was playing increasingly greater role in the definition of a regulatory instrument
such as the Internet standards has been behind the idea of the annual iSummit that was
initiated by CC in summer 2005 in Boston. In the same way as the IETF makes use of a
Secretariat and a Request for Comments (RFC) editor, the iSummit is backed up by the
iCommons organization that is essentially supporting the various CC related activities
and is responsible for the organization of the annual iSummit. While IETF has never
been incorporated as a legal entity, the iCommons has been incorporated as UK
company in 2006. If the IETF seems to be corresponding to the iSummit, the iCommons
is closer to the Internet Society that was formed in 1992 in order to provide (a) a legal
umbrella over the IETF standards process and (b) funding for IETF related activities. In
the same way that Internet Society has as its objective to evangelize the use of the
Internet all over the globe, the iCommons as an organization has as it objective to
evangelize the spread of its own infrastructure, the CC licences, all over the world.
Interestingly the transition from Creative Commons to iCommons has not been without
reaction mainly directed to the lack of understanding of the distinct roles the two
organizations were set to play (Bradner, 1999; Faris, 2006a).
The structure and features of IETF are particularly fuzzy and a similar characterization
may be attributed to the iCommons organization. In the same way that any individual or
organization that participates to an IETF meeting or mailing list may be regarded as an
IETF member, any individual or organization participating to an iSummit or the
iCommons mailing lists may be regarded as an iCommons member. However, such
fuzziness has not been particularly welcome among the original CC community
members that do not see a clear demarcation between CC and iCommons. Whereas for
the iCommons and Creative Commons headquarters the differentiation should be clear,
the former dealing with community development whereas the latter focusing merely on
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the development of the licences, the relevant communities do not seem to have
internalized the differentiation.
This was one of the reasons why there has been a specific workshop in iSummit 2007
specifically dealing with issues of iCommons governance (iCommons, 2007). One of
the major differences between the iCommons/ iSummit and the Internet Society/ IETF
is that the latter is explicitly dealing with the development of standards, whereas in the
case of the former the development of the relevant regulatory instrument, i.e. the CC
licences is entrusted to a different entity, the CC International project. The latter, as
described in sections 2.2, 6.1 and 6.2, has a much clearer structure and objectives,
though since the advent of iCommons, as the minutes from the iSummits indicate, there
is a certain confusion in the relevant communities (Faris, 2006a; Ford, Ito, Henckel,
Keller, Lemos, Lessig, Medak and Wales, 2006). The prevailing idea at this stage is that
iCommons is a more political and community driven initiative, whereas Creative
Commons seems to be entrusted with a more technical task. The fact that the
discussions occurring over the “cc community” (iCommons) and “cc licenses” (Creative
Commons) mailing lists have not the appropriate naming conventions and are often
overlapping further contributes to the overall confusion (iCommons, 2006c; 2006d).
Both iCommons and Creative Commons have their own Boards of Directors, though
there are commonalities in the two organizations. Interestingly, the iCommons are
sharing all their staff with the Creative Commons. Two members of the board of
directors are common, Lessig and Ito. Christiane Henckel von Donnersmarck is the
Director of Creative Commons International and responsible for the coordination of the
licensing porting procedure. Medak, Keller and Lemos are project leads in national CC
projects and only Wales and Zittrain are not affiliated with any CC organization
(Creative Commons, 2006j; iCommons, 2006b).
Returning to the comparison between IETF and iCommons another aspect they share is
that of working groups (in the case of IETF) or nodes (in the case of iCommons). As we
have indicated above the idea of iCommons nodes has been explicitly to replicate
IETF’s working groups (Bradner, 1999). The underlying idea was to have a bottom up
design of the organization for iCommons in the same way it has worked in the case of
IETF. Again the model is the same as the one we have seen in the case of the “cc
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licenses” mailing list, i.e. to allow the maximum of native regulatory forms to be
expressed and possibly even be formalized in the form of projects. However, more than
one year after the introduction of “nodes”, the reception of this concept seems to be
mixed. While there are 45 nodes available, most of them have little or no participants, at
least on the iCommons website. It is the national CC projects and other related activities
that seem to be the most active and particularly the mailing lists where most of the
bottom up activity actually takes place.
The IETF documents are the ones that seem to be closest with the CC licences as in
both cases we have to deal with regulatory documents which are discussed over the
mailing lists. The IETF documents are public documents and are freely available over
the Internet. In the case of the CC licences, Creative Commons does not restrict the
distribution of the licences through copyright but rather achieves the standardization of
the documents through trademark laws and the Memorandum of Understanding: the CC
logo cannot be used without permission from the Creative Commons Corp. and the
National CC projects may use the CC logos and names only in accordance with CC
policies (Creative Commons, 2007c) and the terms contained in the MoU (Creative
Commons, 2005d). In all cases the CC ensures that the licences have the content agreed
after the consultation taking place over the mailing lists and the policies found on the
CC website.
In conclusion, elements from IETF seem to have influenced all iSummit, iCommons
and Creative Commons. The differences between the IETF and its CC-related
implementation may be attributed to two primary reasons: (a) before the emergence of
iCommons and CC International, the functions performed by the two organizations were
resting with CC and the National Project leads of CC resembled the IETF’s Area
Directors. After the 2006 differentiation, the two organizations have started following
their own trajectories (iCommons, 2006c; 2006d). (b) As a consequence, whereas the
IETF has as its clearly set objective the production of standards and the CC the
production of licences, the iCommons that is closer to the structure and functions of
IETF has a far fuzzier set of objectives.
Irrespective, however, of the differences between the IETF and iCommons/ CC, the
production of regulatory instruments over mailing lists remains an element clearly
common between them. It is the production of such licences through the process of
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online consultation over the mailing lists, i.e. a process of construction-cultivation that
the regulatory commons are achieved.
The idea of a construction-cultivation model for the regulatory commons is one that is
fully compatible with Lessig's regulatory philosophy we have explored in detail in
sections 4.4.2 and 4.4.3. It is also a good opportunity to identify the level in which
libertarianism may be identified in the Creative Commons project and answer the CC
critique related to the regulatory fuzziness of the CC project (section 2.6). Lessig's
approach as we have seen it in sections 4.4.2 and 4.4.3 and contrary to the literature that
views him as a cyber-paternalist is one of cyber-libertarian realism and is expressed in
the way in which Creative Commons project implicitly accepting that native regulatory
forms have a priority over the ones sought to be enforced by the state.
This is apparent in the Creative Commons rhetoric emphasizing a certain limited
version of vigilantism in the sense of “taking the law into our own hands” campaign
(Cone, 2003) regarding the choice of the licences (section 6.2) that mostly suits the
needs of a particular author or the participation opportunities that someone has -at least
in principle- in the formation of a particular licensing form (in section 6.2). In Lessig's
theoretical work [e.g. in (Lessig, 1999f; 2001b)] the libertarian element is expressed in
the definition of the Commons as autonomy of the network ends project and the
emphasis on the stupid network concept (section 4.4.3). At the same time the realism or
the hidden paternalistic agenda in the Creative Commons project is expressed in the
choice of strategic tools that are predominantly of a legal nature, i.e. the licences
(section 6.3). Other regulatory modalities also exist, though they are not as clearly
highlighted, such as the meta-data technologies and the very conscious effort to produce
a particular type of social meaning regarding Copyright and the CC licences.
The idea of the cyber-libertarian realism model as expressed in the CC project allows
autonomy at the ends of the network regarding the formation and choice of the
regulatory means, but once this is made the rule of the law comes again into play. A
final, and perhaps the most interesting side of the paternalistic agenda, is hidden in the
way in which the formation and choice of licence elements is being framed by a very
conscious and orchestrated campaign of meaning construction (section 6.2). In
summary, the cultivation of the regulatory commons comes if not temporally at least
analytically in a subsequent stage from framing through a set of static cultivators that
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sets the agenda and diminishes any possibility of the whole development process to
deviate into a proprietary licensing project.
7.2.3 Preservation of creative practices/ native regulatory forms
Having presented in the two previous sections the basic features of the association
construction and cultivation model in the CC project, we return in this section to the
issue of static cultivators and the first aspect of preservation of native associations in the
CC project that relates to the preservation of creative practices.
Creative Commons ties with a series of practices, social norms and technologies used by
the creators, particularly those that seem to be contradicting the program of action of the
classic Copyright project (sections 6.1 and 6.2). This is a particularly important aspect
for appreciating yet another difference between the CC project and the classic Copyright
project.
The Copyright regulatory solution focuses on the enforcement of the licences and the
construction of a pattern of social behavior for the consumption of works that is in
accordance to the existing models of creation and dissemination of material. The tying
efforts that we see in a series of educational movies since the 1990s all have the same
semiotic content (Cambell, 2005): explaining why infringing copyright is unethical and
illegal and tying it with other illegal and socially unacceptable activities such as theft of
tangible goods; in the 1990s the rhetoric was gradually enriched with an equation of
private copying and sharing of material with professional piracy (The Software
Publishers Association, 1992). Post 2000, a link was made with the funding of
organized crime and terrorist activities.
Such form of rhetoric, that a series of popular culture movies found in YouTube such
Weird All Yankovic's Don't Download this song (2006) and MC Lars (2006) Download
This Song along with a series of other audiovisual material and web-pages have scorned,
is addressed to the user of the material. Even if the user may be involved in creative
uses of the material in the form of secondary uses in the sense of producing collective or
derivative works, for the meaning construction process advocating the existing
Copyright model such dimension is not existent: the users are seen as end-users or
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consumers; always passive and always as targets; never as sources of material. The
EULAs are there by the creators and the effort is to make their regulatory content
respected. This has been the rationale behind the introduction of DMCA and EUCD like
regulation: to convince the authors to put their material over the Internet by providing
legal backing to their licensing agreements (see also sections 3.1 and 3.2). However, the
focus of the Creative Commons licensing project is entirely different.
Creative Commons is interested in an audience of artists or creators that seem to be
sidelined by the existing Copyright system: creators that wish their works to be shared;
creators that base their works on other creators' works; creators that are not necessarily
professionals (section 6.1). Subsequently, the time or stage at which the licences are
applied precedes the stage the classic Copyright system is interested in: the meaning
construction process is at the stage of making each user of material to realize that she is
potentially a creator and that she may decide how to divulge her work, in Creative
Commons' suggestion to allow others to share and reuse the work.
Elkin-Koren (2005), Berry and Moss (2005) are correct in the sense that Creative
Commons aims at empowering the author, that it reinforces rather than opposes
concepts of property and that it accepts the legal framework of existing Copyrights
(section 2.2); however, to stop the exploration of the Creative Commons project at this
stage is a mistake. The focus of the whole project is entirely different from that of
classic Copyright: While the way in which Copyright is applied seems to be focusing
primarily on the enforcement of its provisions (section 3.1), Creative Commons is
primarily interested in the construction of the regulatory structures (section 6.1). It is the
participation of the author in the construction and choice of the regulatory means rather
than their enforcement that is of interest for the CC project. This is clearly illustrated in
sections 6.2 to 6.4 where the process of allowing native forms of creativity to be
expressed in the CC licences is expressed.
Elkin-Koren (2005) argues that the use of the licences reinforces a permission culture
(section 2.8). The use of a licence has two aspects: the choice of licence by the creator
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and the use of a licence by the user (section 6.3). The same person may have both roles
simultaneously, for instance, a creator may be using a CC licensed work in order to
create a derivative work she wishes to license under a CC licence as well. It is,
nevertheless instructive to analytically separate the two roles for the time being in order
to assess the implications for each of the two cases. While the critique of the Creative
Commons project views the use of licences as a condition establishing a social behavior
pattern of seeking permission, the Creative Commons’ view is rather different: the user
of the work licensed under creative commons, when operating as a user will not pay
attention to the licensing part.
This is due to a number of factors: first, the existing pattern of behavior on the Internet
is such, that the user anyhow does not pay attention to the licensing schemes. Creative
Commons seeks to perpetuate such habit. The opening statement of the Creative
Common project is indicative of such a tendency: to share, reuse and remix legally. The
same is valid for all CC promotional movies (section 6.1): they show existing practices
on the Internet that before lied in a framework of legal uncertainty or were consciously
illegal whereas they now become legal. For the founder of Creative Commons, as he
explained in a 2006 interview the author of this thesis obtained from him (Lessig,
2006e), the act of licensing remains for the user of the work encapsulated or hidden;
through the use of simplified wording and icons and through automated procedures the
basic features of what is allowed to be done with the work are expressed in such a way
that they do not interfere with the behavioral practices of the user of the work. In
Lessig's own words:
“Of course, formally that’s true [that the licences may create a permission
society]. It’s enacting a permission based system by licensing content to
facilitate commission of works. But, I don’t think, practically that it’s a fact;
because if it works, what it does is bury the permission structure so that people
experience freedom. They don’t experience permission. And they know that
nobody can attack them for what they’re doing because the permissions are
already cleared of that. So, rather that forcing people into the mentality of
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« here’s the freedoms you got, and here’s the freedoms you don’t » every time
they’re using content, what they are doing is creating space of content where
broadly people feel authorized to use… and so the full analysis of the effect of
that has got to consider what the baseline is.” (Lessig, 2006e)
Lessig's point is backed by the kind of behavioral patterns illustrated in the Creative
Commons website, audiovisual material and even on the relevant mailing list examined
in this thesis in sections 6.1 and 6.2: though the focus is primarily on the creative rather
than the consuming role of the individual, we are presented examples of bloggers
(Brown, Junell, Paharia and Walker, 2003), sci-fi authors disseminated fiction on the
Internet (Doctorow, 2006), scientific, academic and educational material (Minksy,
2006). The creators of such material wish it to be freely disseminated over platforms
such as wikis, remix music sites, file-sharing services etc.
Elkin-Koren, Berry and Moss criticize Creative Commons as an overtly conservative
project (section 2.3) but it we need to contemplate on the kind of conservation it aims
at: it is the conservation of practices of creativity that already exist, that draw from
common resources and are threatened by the way in which Copyright is applied in
practice by existing rights holders. Elkin-Koren views the focus of Creative Commons
as one of changing the meaning of Copyright by convincing the authors to exercise their
rights in a way different from the way they used to (section 2.6). However, this is not
entirely correct. Creative Commons asks a new class of creators to keep exercising their
rights in the same way they used to and an audience that is viewed as passive to keep
engaging into activities they were already doing. Creative Commons has as its focus
preservation but the interesting question to ask is what kind of preservation it aims at.
The CC project even at its seeding and framing stage is very much interested in
preserving forms of 'native' regulation and those aspects of formal regulation that are
most closely linked to them. The defensive constructions the CC project attempts to
create reinforces this point.
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7.2.4 Preservation of legislative aspects
The second area where seeding is focused on is that of Law as a formal form of
regulation. Here, Creative Commons attempts to interface with the legal system and to
operate as a bridge between the way in which native regulatory practices are
materialized and the legal regime used to control them. What is perceived as the
subversive operation of the CC project, to use the master's tools to destroy the master's
house (Dusollier, 2006) in the realms of Copyright Law is nothing more than CC's effort
to interface the two realms of activity. CC is not the first project to attempt a linking
between creative practices based on sharing and licensing instruments. The Free
Software Foundation (Bradner, 1999; Raymond, 1999; Stallman, 1999) and Project
Gutenberg (Hart, 2004; Moody, 2006d; Project Gutenberg, 2006) have been there much
before the CC project came about. The Free Public Licences, e.g. in the case of GPL or
the OPL, were legal expressions of creative practices of a specific group of creators,
such as software developers or archivists (sections 6.1 and 6.2).
The strategy of defensive association building of the Creative Commons project in
relation to aspects of the existing regulatory system are explicated in Lessig's series of
Newsletters [e.g. in (Lessig, 2005c; 2005l)]. This series of Lessig’s Newsletters was
also used as a source of justification by the formal CC organization itself: as explained
in section 6.4.3, in the latest changes in the Creative Commons licences version 3.0, the
legal counsel of Creative Commons, Mia Garlick, has explained that the effort to draft
compatibility provisions was to a great extent the result of Lessig's plead in the end of
2005 for such a development that in its turn was influenced by the relevant discussions
over the mailing list (Garlick, 2007). So, returning to the point of the kind of
preservation that Creative Commons aims at establishing, we need to look at the
direction of the expansion of Fair Use in Cyberspace (Lessig, 2005k).
Lessig's argument is that though the letter of the law regarding fair use provisions has
not changed, the changes in context have substantially disturbed the balance of rights
between existing and future creators as well as between the rights holders and users,
always in the detriment of the latter category (section 6.1). As a result, we need to find a
way to preserve in the digital environment values or principles found in the original
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Copyright law of the analogue environment. Lessig implicitly acknowledges that a
strategy of directly seeking for legislative change does not have the social backing to
succeed (Lessig, 2004c); or at least it did not have such backing in the end of 2005
when he wrote the relevant Newsletter (Lessig, 2006e). As we have seen in our critical
literature review, Lessig’s work and analysis in sections 3.6, 4.5 and 6.5, the
internationalization of the way in which the Copyright law is enforced increases the
distantiation between the regulated subject and the way in which regulation is
constructed and hence it is virtually impossible, or the costs are extremely high, for any
change in the legislative level to occur. In Brownsword’s work (Brownsword, 2005;
2006) in section 4.5.1 we have indicated that the problem with situational regulation is
that it is embedded in the environment and the regulatee does not have the choice to
comply neither the ability to influence it.
As a result there is need to devise creative regulatory means (section 6.2) in order to
express in formal regulatory terms two existing formations, one behavioral and another
one of regulatory nature: the behavioral refers to the practices of sharing, reusing and
adapting of material; the regulatory refers to the extent of unregulated and regulated but
free uses of material in accordance to Fair Use provisions (Lessig, 2005k). Following
Lessig's (1993) innovative conservation concept we have seen in his theoretical work in
chapter three (section 4.4.3) we may see the Creative Commons project as a
preservation of values project that uses creative regulatory means, as a creative
regulation project.
The need for a creative regulation project derives from an implied assumption that the
existing regulation construction mechanisms are captured in the sense of regulatory
capture (Mitnick, 1980), that is, that there is no access to such regulatory production
means by the regulated subject and hence there is no input in the way the content of the
regulation is formed. Again, this is a pivotal moment in our realization of what
constitutes the ontology of the Creative Commons project. If viewed as a project aiming
at the recapturing of the regulatory means or a project for the eradication of regulatory
distantiation (section 7.1.1), then a series of its aspects that seem incoherent or opposing
to its objectives may be explained. At the same time it also raises another fundamental
question: which are the objectives of such a creative regulation project? Creative
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Commons seems to be asking for a reclaiming of the regulatory means; however, we
still need to explore how it argues this should happen.
Going back to Lessig's 2005 newsletters (Lessig, 2005k) and the Fair Use Plus analysis
of section 6.1 is of great assistance to our investigation. It is also particularly helpful to
differentiate between being an advocate of preservation of certain values and certain
legal forms and of being reactive. As argued above, the Creative Commons project is
one that advocates preservation but also one that is proactive; or more accurately one
that is preservative in the choice of means but requires a proactive attitude in order to
survive.
Lessig (2005k) refers to the Creative Commons project as being one that supports a Fair
Use Plus system. We have described in detail the CC project in sections 6.1 and 6.2.
The elements that we need to highlight in this section are those that make it more
extensive and more limited from the existing Fair Use system in order to achieve a
similar result. Through the system of Creative Commons, the creator agrees to allow
certain uses of his work that under the default Copyright rules would not be awarded to
the user of the work. In that sense the exceptions to the rights of the creator are greater
than those that law awards in accordance to the Fair Use provisions. At the same time in
contrast to the Fair Use provisions, it is the creator, the rights holder that voluntarily
agrees to cede such rights to the user of the work rather than the organized state being
the one imposing such rule upon the creator. In that sense the Creative Commons
framework of regulation is more limited than the law.
However, this volunteer element of the CC project, what appears to be a weaker
moment in the application of the Creative Commons solution, what seems to be its
softer side, is in fact the essence of its strength and the element that makes it a much
stronger form of regulation than the classic Copyright law. When the creator makes a
choice to use a Creative Commons licence, she willing fully and purposefully accepts to
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reduce some of her rights. It is a conscious act that assumes a certain level of
involvement and potentially internalization of the regulatory content of the Creative
Commons licences before they are actually enforced. This marks a departure from the
classic operation of Copyright law: the internalization (section 4.2) of the regulatory
content occurs in the process of making the choice of a licence, whereas in the case of
classic copyright the internalization of the regulatory content of Copyright law by the
Creators is not presented as a major concern or is focused on the user of the
Copyrighted material and only after the licence has been produced.
This aspect of Creative Commons is a strong indication of its proactive nature, the need
to engage the creator in order to achieve the desired regulatory result. This desired
regulatory result remains to a great extent a semi-open question, but what is important at
this stage is to show that the focus of the Creative Commons effort is not to provide the
regulatory solution, but rather to provide the tools to the relevant individuals to
construct the solution. Lessig provided a rather good example of his conceptualization
of what Creative Commons is about in the 2006 interview:
“It comes to creating an alternative regulatory environment, ruled by voluntary
action on top of existing legal norms. So when people go out and they say : « we
want Bill Gates to go and give away 20 billion dollars to the poor » and he does,
they create a different resource structure on top of existing laws of property.
Nobody could have gone and take it from Bill Gates, but because he gives it
away, that’s an important way of modifying the effects of inequality of the
previous system. Now, we do the same thing…it’s just in a more grass root
systematic way.” (Lessig, 2006e)
The use of tools that at least appear as ideologically neutral and as encouraging the
expression of existing formal regulatory associations is to a great extent the result of a
project that seeks in yet another way to push the choice of the regulatory content at the
ends of the network. This choice of tools as seen in section 6.2 and analyzed in section
6.3, may be attributed in three classes of factors:
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First, the choice of certain means by Creative Commons is the child of need; it is not
possible due to the structure of copyright law to move directly to the production of
regulatory frameworks that are consistent to the social practices of their own context.
Lessig has expressed this point with great frustration during the launch of the Creative
Commons China project when asked about the framework in which Creative Commons
operates:
“(I)nternational conventions are imposing this framework on the whole world
and there are two ways to respond to this framework: one way is to resist the
framework only ; the other is to get advantage of whatever quarter of freedom is
left within the framework to craft something that has more of a balance. I respect
the people who want to resist the framework completely and sometimes I think
they should resist it and nothing in my CC defines what the scope of IP pirates
ought to be or what things ought to be set of for my pirate so maybe
traditionalists deal with it differently. All of that is exogenous to the mission of
CC: all CC says is that to the extent that a Nation grants IP rights to the authors
to control of how these governments back entitlements are delegated, we think
authors should have a simple way to delegate these differently. So the bigger
question of should there be IP everywhere, should I be covered…those are
questions that nothing we are doing has an answer to.” (Lessig, 2006e)
Second, Creative Commons seeks through these creative regulation tools to preserve
creative behavioral patterns of the off-line world in the online world such as the Fair
Use (Lessig, 2005k) provisions while using a traditional legal form, that of licensing
that classic Copyright law uses (section 6.1). The use of traditional legal forms such as
licensing for the achievement of innovative solutions is the reason why early critics to
the Creative Commons project, such as Toth (2005) or Dvorak (2005), view it as a
project that does not have anything new to add.
Third, Creative Commons seeks to be faithful to agreed principles not merely through a
process where privileged representatives of an experts' class, such as judges, are to
make a decision but a process where the individual creator is mobilized towards a
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certain direction, that of creating the commons. Interestingly, such efforts will replicate
the Common Law idea (section 4.4.3): multiple representations of different cases in
different space and time (posts from different users describing different situations) will
operate as the input for the creation of the normative/ regulatory tools (Lessig, 1996a;
1996d; 1996e; 1999e; 1999f). In accordance to Lessig's theory as described in chapter
four, the court decisions may change not only directly but also indirectly by changing
the context and the presuppositions upon which they are founded. Lessig made this
point explicit in relation to Creative Commons during the Beijing Interview when asked
whether Creative Commons is such a conscious effort to change the principles upon
which Copyright is founded:
[Lessig]: Yes, it’s a conscious effort. The most important failure of the
Americans left is that it’s believed that they can raise to courts and get courts to
articulate founding ideas, reflecting judgments about truth. The reality is that
there are no such stable quarantining actors. What’s you got to do is enliven the
ideas in the minds of ordinary people and then what the democratic process
reflects. So the idea of getting a bunch of judges to tell you what the Founding
Fathers thought is a way of creating resistance to the most powerful lobbyists in
the world. It’s a silly mistake that I made …
[Tsiavos]: in the Eldred case…
[Lessig]: …in that era. The fact is you can read these values into the
Constitution, and I certainly believe, as a historical matter, that they were the
values of the Constitution, but will be read into the Constitution only when they
reflect a sort of social understanding. So, you can’t just sit and blog your way to
freedom, you got to get people to practice it, not just by arguing, but by giving
them tools that they use day by day, in order to distantiate from the freedom they
believe in. And, absolutely, that’s what CC is about.” (Lessig, 2006e)
In overall the Creative Commons project seeks to establish the Commons, leaving its
definition open through a gradual process that allows creative practices that already
exist to express themselves. It is this insistence of the CC project to allow practices to
emerge rather than to channel them towards a specific model that has attracted such
criticism from various sides.
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Lessig's counter-argument to the critique that Creative Commons through the licences
reinforces a permission culture (section 2.8) is that it cannot be held responsible for a
model of regulation that constitutes the normative framework within which it needs to
operate. It is a matter of realism accepting its existence and, as we have shown in
previous sections, CC is also a means that is used in a very different way from the
classic EULAs:
“I agree with [Elkin-Koren] that those norms have changed, but I wouldn’t
attribute the change to the CC. I would attribute the change to massive litigation
against people doing stuff on the Internet without expressive permission. So
when we saw massive litigation, we thought that CC is a way to balance that by
creating an alternative, but it’s an alternative to increase our position, which we
didn’t create, but which I don’t think any of us could avoid precepts issues on
copyright. So you come here to China and you listen to these judges articulating
this precept position as if as it is a God given truth, and it’s a astonishing both
because of its totally contingent character historically and also culturally because
of its alien relationship to what is the Chinese cultural respective ideas about IP.
And it’s just taken for granted fact.” (Lessig, 2006e)
A great part of Creative Commons strategy is acknowledging the existence of a legal
reality within which the project is placed while not accepting it as a given. A great part
of the Creative Commons project is to deconstruct this reality by making its
presuppositions visible and thus contestable (see section 6.4.3).
The argument that if the tools are provided, then the creative practices of sharing will
emerge (sections 3.4.2, 4.4.3 and 7.1) is a result of two assumptions: first that friction
will be removed from already established practices in the off- and on-line world and as
such creativity will flourish; and second that there is no pre-established model of
creativity that is sought to be supported but rather a very loose set of practices that is to
be encouraged. These principles are (a) the elimination of friction so that the ends could
best collaborate with each other provided (b) –and that’s the second principle- that there
is will for such collaboration and sharing of resources to take place.
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Another aspect of the legal system that Creative Commons tries to preserve or rather to
resurrect is the one relating to the setting of formalities in relation to the protection of
the work. In the first of the Creative Commons films (Brown, Paharia, Junell and
Walker, 2002), we learn about the abolition of formalities for the protection of works
under Copyright law and the subsequent problems it raises in relation to the clarity of
rights or permissions that an author would like her work to have (sections 6.1 and 6.2).
The whole idea of using licences is to a great extent an expression of this broader need
to clarify the rights conferred to the user of the work. Interestingly this form of
construction is both defensive and offensive/ expansive, both constructive and de-
constructive and refers both to legal rights and behavioral practices.
In overall the static cultivation of the CC project in the form of framing or seeding is a
conscious effort to produce associations with existing native regulatory formations both
at the creative practices and the legal level. The basic operation of these efforts is to
make the CC project move towards a certain direction. Such effort is complemented by
the work of the dynamic cultivators, which we have described in detail in sections 6.4.4
and 6.4.5 and the political implications of whose action is described in the following
section.
7.2.5. From Regulatory to Creative Commons: the political
dimension of the CC project
Most of the arguments we have presented up to this point seek to explain how Creative
Commons is a project that seeks to establish a regulatory commons where native forms
of regulation would have the ability to express themselves in the form of a formal
regulation such as the CC licences. What is presented in the rest of this section is how
such an endeavor leads to the establishment of a creative commons as well and how it is
ensured that a regulatory commons will not lead to the development of a proprietary set
of licences.
We have already shown how this expression of native regulation is framed by a series of
static cultivators and in that sense it cannot by definition drift towards all directions.
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Much of the critique of the Creative Commons project that we have seen in section 2.2
refers to the way in which the efforts of defensive association construction by the CC
project may lead to the construction of a proprietary meaning. To phrase the critique in
the language of associations, it argues that the static cultivators could potentially create
associations contributing to a proprietary model of creativity rather than one supporting
the creative commons.
Though there is some truism in such critique of the CC project, it would not be precise
to say that it is correct. The defensive constructions the CC project attempts aim at a
construction of increasing empowerment of the individual creator but not necessarily
towards a proprietary direction. There is no minimum set of given principles to which
all CC licences have to adhere but rather that if such principles are to exist they have to
be developed through a political process where the various creative communities and
individuals will have the opportunity to debate on their adoption. It is the regulatory
autonomy of the creator (also see sections 6.3 and 6.4.4) that is protected through the
regulatory commons dimension of the CC project.
Lessig's differentiation of incompatibilities between designed and accidental ones
(Lessig, 2005g) that we have seen in section 6.1 is indicative of such regulatory
autonomy principle: if there is the will by the respective creative communities as
expressed in the licences to collaborate with each other, then there should be an effort
towards the establishment of certain principles; if such intention does not exist, then the
incompatibilities should persists as a result of the regulatory autonomy of the creator.
The framing and cultivation of the CC project makes a deviation towards an entirely
proprietary licensing form highly unlikely: it is not merely the CC licences that lead
toward the Commons or the vocabulary that makes very difficult such a deviation; it is
primarily the incremental nature of the interactions (section 7.2.1) and the dynamic
cultivators (section 6.4.5) that operate as a thematic boundary that does not tolerate
discussions for the development of proprietary solutions: the example of Prodromou in
the early stages of the discussion of the licences that has explicitly refused to provide
any comments that would allow an appropriation of CC licensed material or the
subsequent heated discussions on compatibility with the principles of other pre-existing
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communities such as the Free Software Foundation or Debian is indicative of the
extremely high costs an attempt to convert the CC discussion to a proprietary licences
discussion would have had (sections 6.3 and 6.4.4-6.4.5).
However, even if we accept that the regulatory autonomy is the reason behind the
appearing incompatibilities amongst the different types of licences it is interesting to
explore how and why the interactions are very likely to lead to the establishment of a
creative commons. We have seen this trend in the early parts of this chapter: the kind of
native regulation seeking a form of expression into a formal regulatory instrument is the
one that supports share, re-use and re-mixing of material (section 7.1.3). This is
something that the Creative Commons project promotes and may be found on its home
page as the primary description of the CC project (section 6.1); at the same time we may
argue that this is a reasonable outcome to expect: other forms of native regulation that
are more restrictive or proprietary are already expressed in formal regulatory
instruments in the form of proprietary EULAs. Thus, if the expression of proprietary
relationships is pretty much satisfied, what is needed is a regulatory instrument that is
capable of expressing the native regulatory forms that are not adequately represented in
formal regulatory means and these are the ones fostering norms of share, re-use and
remix.
One of the basic aspects of the critiques of the CC project has received is that it supports
the use of EULAs and in that sense, if the CC licences are legally valid, it supports the
classic EULA project and hence advocates conformity and reaction, rather than change
and being proactive (section 2.3). However, as we have already seen (section 7.2.4) the
kind of conformity to EULAs CC promotes is vastly different from the classic
proprietary Copyright's project: it lowers the costs for the creators that want to
encourage access and sharing. We have already seen in Lessig's account of the Fair Use
plus provisions (sections 6.1 and 6.2), how the proactive creator is the corner-stone of
the meaning the CC project seeks to establish. Such proactive creator that decides to use
a CC licence or to participate in its formation is essentially a representative of the native
regulatory forms already existing in the field and seeking a way of expression.
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According to Lessig's model, as complemented by the discussion of the analysis in this
chapter, since such native regulation promoting sharing and reducing regulatory friction
exists, the process of cultivating a regulatory commons with the regulatory autonomy
remaining at the ends of the network should with the appropriate framing lead to a
creative commons: if the native regulation is to support sharing, re-use and remix then
first it will adopt the CC licences containing such elements; then if there are
incompatibilities between the CC and other licences promoting the same principles, the
ends of the regulatory network will themselves request to obliterate such differences and
achieve compatibility between different licensing schemes; in the same way that the
native regulation will ask a more evolved form of formal regulation that would support
abolition of friction by objecting to the classic Copyright project and adopting the CC
licences, it will seek to create bridges between the CC licences and other licensing
forms that have the same functions but have incompatibilities that are of an accidental
nature and are the result of legal drafting rather than conscious choice.
The empirical data analysis presented in section 6.4.3 confirms this assumption: from
the very early period of the CC project the majority of the postings on the list referred to
the operation of the Share Alike element and have had as their objective to find a
licence that would allow all material created and licensed under the same type of licence
to be practically and legally miscible.
In the early phases of the CC project (section 6.4.4) there is a clear fragmentation of the
creative commons: because of the existence of multiple mutually incompatible licences
promoting sharing and re-use of creative material, problems of legal friction exist. At
this stage of the creative commons life cycle we may talk about first order commons. As
the CC project matures (section 6.4.3), the need to overcome this fragmentation
becomes more and more apparent and through the process of cultivating the regulatory
commons there is an effort to move to a second order commons where all accidental
incompatibilities have been eradicated. In this process of moving from first to second
order creative commons we are experiencing a similar shift from a discussion involving
licences’ features to one involving licensing principles. This is clearly depicted in the
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overall pattern of thematic distributions in section 6.4.2. As we have seen in the case of
the CC project, this transition of creative commons level has been accompanied by a
series of changes in the organizational level: the emergence of the iCommons along the
Creative Commons licensing project (sections 6.1 and 6.2) seems to be serving the
purpose of accommodating this level change from a more technical to a more political
process.
However, while the founders of the CC, Boyle and Lessig, as well as the rest of the CC
staff have insisted in the non-political dimension of the CC licensing project (Lessig,
2006a; 2006e; Boyle, 2006) and the potentially more political nature of the iCommons
project, it is in fact very difficult to differentiate between the two. This is apparent from
the stance that the various iCommons international affiliates have adopted in relation to
the iCommons project not recognizing any fundamental difference between the latter
and the CC project as well as from the fact that most of the discussions and decisions
made regarding v.3.0 of the CC licences were explicitly political: the decision to leave
intact the text of the licences referring to Digital Right Management or Technical
Protection Measures despite the opposite argument made on the list was primarily the
result of the objections raised by Creative Commons international affiliates and the
belief that the political impact from the Free Software Foundation that was in favor of
leaving it as it was, superseded the potential backlash from the Debian community that
advocated an amendment to include a transparent copy of the work (that is a copy in
binary form) and allow TPM with any possible distribution. Similarly the provisions
regarding the Collecting Societies (CSs) had to be decided not merely on legal merits
but also in relation to the kind of responses the CC group of international affiliates
interacting with CSs had received (sections 6.3 and 6.4.3).
In overall most of the themes discussed in relation to the licences are increasingly
acquiring an explicitly political character (sections 6.4.2 and 6.4.3). We could argue that
this was partially the case even since the inception of the project as, for instance, the
issue of Free licence and FSF/ Debian compatibility or the treatment of moral rights or
the inclusion of the NonCommercial element in the set of CC licences that were raised
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as early as in 2003 have all very strong political aspects. However, as the project
matures the fact that some decisions have explicitly to be made on a political basis is
something that has been internalized by the participants to the discussion and is
something that is explicitly stated it in their respective postings (Garlick, 2007).
Lessig's or Boyle's statements (Lessig, 2006a; 2006e; Boyle, 2006) that the CC project
merely involves the licensing building and that the iCommons is the one that has more
of a political flavor is not in tune with the CC reality at the moment. However, Lessig's
understanding of the way in which a judge made law or a Common Law operates gives
us an indication of the reasons behind the choice to consciously deny the political nature
of the licensing project and try to introduce a new organization entrusted with such a
function (Lessig, 1996-1997; 2001b) (section 3.4). In Lessig's early period papers
(1989; 1993; 1995b; 1995d; 1997b; 1997c), particularly the ones dealing with the
regulation of the social meaning, we have an indication that in the cases with an
explicitly political character, it should be a body with an explicitly political character
that should deal with them (section 4.4). Lessig in the U.S. constitutional context argued
that any issue of an explicitly political nature should not be decided by the non elected
court but rather it should be differed and decided by the Congress as the most competent
body. In the case of Creative Commons and iCommons interaction we see that Lessig
attempts to simulate a similar kind of separation of powers: the most political body, the
iCommons is to decide on more political issues, whereas the “cc licenses” mailing list
should exclusively deal with a technical issue, as is the building of the licences.
Despite the intentions of the CC founder, the separation of political and legal functions
is not a reality at the moment, though the possibility of such a future development under
certain practical conditions could not be excluded. We have argued throughout this
thesis that the CC project is primarily the result of a reaction to the problem of
regulatory distantiation (sections 3.6 and 7.1.3) and as such it aims, even implicitly,
primarily at producing a regulatory commons (section 6.4.5) that through a process of
cultivation will lead to the establishment of the creative commons.
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This process of cultivating the regulatory commons is inherently a political process
precisely because it involves the creation of associations that always require the
enrollment of actors, humans or non-humans. It is also political because it involves
representation in the discussions regarding the construction of the licences as well as in
the way in which the interactions take place. As a matter of fact, in the process of
constructing or cultivating the artifact of regulatory commons, the licences, any
differentiation between the political and technical aspects is very difficult to be made.
If in the future we see such a separation in the framework of the broader CC project,
with the CC organization taking care of the technical part and the iCommons dealing
with the more political one (section 6.1), then we should expect the following
amendments: first the aspects of representation in the iCommons framework have to be
much more clearly explicated in order to provide the necessary legitimization and
second the discussion regarding the common licensing principles we envisage is going
to soon commence after the introduction of v.3.0 of the CC licences will be transferred
from CC to the realms of iCommons. It will also require an internalization of the
relevant differentiation so that any discussions happening on the CC licenses mailing
list is directed by the dynamic cultivators to the iCommons discussions, something we
have no sign of happening at the moment. In any case, even if such differentiation is to
actually take place, the character of the broader CC project as a regulatory commons
project is only going to be more intensified with a very conscious political agenda now
being at the center of the discussions. In such a scenario the licence principles will
become yet another regulatory artifact that will be developed on the “cc licenses”
mailing list.
Though the idea of leapfrogging directly to a strict creative commons effort without
passing from a regulatory commons stage may be very appealing, the aforementioned
analysis indicates it is particularly difficult to occur. This is due to the same reason why
Elkin-Koren's (2005; 2006a) critique irrespective of the correct conclusions it makes on
a legal level it would have been impossible to be applied to rectify the CC strategy at
the time of its creation.
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To the author of this thesis, Elkin-Koren’s argument concerning the clear ideological
position regarding the Commons together with the problem of fragmentation of the
Commons as its direct result (section 2.7) is her most important contribution. It
highlights the nature of the CC project as a primarily regulatory project and secondarily
only creative commons project: precisely because CC is so clear regarding the
regulatory autonomy of the creator being its primary objective (section 6.1 and 6.3) and
the conscious absence of a single definition for the creative commons, it is the case that
the fragmentation of the creative commons will be gradually overcome. By providing
autonomy to the ends of the regulatory network and allowing native regulation to be
expressed in a very political process, the process of formation of the regulatory
commons makes it possible to gradually move from first order unintentionally
fragmented commons to second order intentionally non-fragmented commons (sections
6.1, 6.2, 6.4.4 and 65.4.5).
It is the process of allowing representation of a hybrid of different actors and cases that
ensures that when the creative commons are established the cost of their regulatory
enforcement will remain extremely low. This process that seems extremely slow,
inefficient and ineffective, that seems to be promoting vigilantism and echoes libertarian
sentiments against the creative commons is the one that operates as a guarantor of the
integrity and coherency of the commons. As the associations are made in the direction
from the various forms of native regulation to the forms of formal regulation it is
ensured that the cost of enforcement in the opposite direction is going to be very low. In
addition by making sure that this remains an ongoing process always orientated to the
cultivation of the regulatory artifact and less to its enforcement ensures that the
regulatory distantiation with all its adverse effects remains a non-issue.
Comparing the operation of the CC as a primarily regulatory commons project to the
FSF or the Debian as primarily Free Software projects is instructive for appreciating the
differences in their operation. The critique of the CC project often contrasts the
existence of a clear set of principles for what constitutes Free and what not in the cases
of the FSF and Debian to the lack of a single definition in the case of CC. Both the FSF
and Debian are fairly coherent groups referring to a single type of copyrighted works,
software and only recently to others, such as content with the Free Documentation
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Licences. They are governed by software developers and were historically addressed to
software developers. They started with a single licence the General Public Licence that
constituted a formalization of working practices and principles existing in the context of
software development to then move to a set of principles according to which other
licences were judged to be Free or not . This is a process that started with version 1.0 of
the GPL in 1989 to continue with the Free Documentation Licence only after 2000.
(Raymond, 1999; Stallman, 1999)
This trajectory should not appear surprising to the reader of our analysis in this chapter:
in the earlier stages of the FSF project the formal regulatory means employed by a fairly
coherent community are reflecting the existing native regulatory forms. Even the
prehistory of the GPL indicates their proximity to native regulatory forms:
“The GPL was written by Richard Stallman for use with programs released as
part of the GNU project. It was based on a unification of similar licenses used
for early versions of GNU Emacs, the GNU Debugger and the GNU Compiler
Collection. These licenses contained similar provisions to the modern GPL, but
were specific to each program, rendering them incompatible, despite being the
same license. Stallman's goal was to produce one license that could be used for
any project, thus making it possible for many projects to share code.”
(Wikipedia, 2007b)
Juxtaposing the trajectory of the two projects we find more similarities than differences.
The originally incompatible licences are gradually becoming compatible, as the
incompatibility is of an accidental nature. In both cases the starting point for having
such licences is the distantiation of creative practices from formal regulatory forms; and
in both cases there is an evolution of the licences in terms of subsequent versions that
seek on the one hand to achieve better expression of native regulatory forms (e.g. by
introducing a content specific licence like the FDL in 2000) while maintaining
compatibility through a series of principles. We know from the CC discussions on CC
v.3.0 licences that even the FDL was only exceptionally considered as compliant with
the Debian Free Software Guidelines Definition and this has led the CC to believe that
the v.3.0 will also pass the test.
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The greatest difference between the two projects, as we have already indicated in
section 5.2, is that the CC project was initiated by a U.S. Constitutional Law professor
and not by a creative artist that would be closer to the context of creativity and would
have the relevant legitimization to proceed with the writing of Free/ Open Content
licences. Lessig is an exception to other founders of Free/ Open Content projects such
as project Gutenberg by Hart (2004) or the Open Publication Licences by Wiley
(Moody, 2006b; Wiley, 1999) that were initiated by individuals actually involved in an
e2e mode of production of content. Lessig was interested in an e2e mode of production
of a regulatory instrument and, as we have shown in this chapter, this is what the CC
project is about: the construction of associations that allow the expression of the native
regulatory content into a formal modality of regulation. Lessig and CC were lacking the
legitimization (section 4.4.3) -or to use the terminology employed in this chapter- were
lacking the appropriate associations to make any definitive proposal regarding the
regulatory content of the CC licences. The closest CC could do was to provide a
framing but nevertheless provisional proposal of the regulatory content by presenting a
specific set of licences that to Lessig's analysis of the Fair Use Plus provisions and by
making the a mix of existing regulatory solutions seemed to be closest to native
regulatory forms. From that point onwards the formation and further development of the
content of the licences first, and the principles upon which the licences should be based
in a subsequent stage, should be conducted by the ends of the regulatory network.
The provision of a fixed set of principles for the CC licences in the name of the creative
community without having a political body to support such regulatory content would
most probably raise significant regulatory costs of application. By choosing instead to
move from the regulatory to the creative commons, CC has managed to effect an
amortization of any reactions at the stage of regulation cultivation rather than at the
stage of their enforcement. Having followed a different model where a set of exotic
regulation (and Lessig/ CC were exotic to the creative community at the time of
introducing the first set of licences) would have been imposed in the form of principles
on the problem domain, would have gradually faced the same distantiation problems as
the original Copyright project. The genius of the CC project does not lie in the
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suggestion of a set of licences seeking to support the creative commons but on the fact
that it constitutes a self-generating machine of creative regulation in which regulatory
autonomy remains at the ends of the network canceling out any regulatory distantiation
phenomena.
This dual political/ cultivation nature of the CC project that as we see is only likely to
be intensified as the project matures also corresponds to Lessig's research project in the
late 1990s regarding the character a Cyberspace meta-regulator should have (sections
4.4.1 to 4.4.3). What the CC project comes to indicate is that if there is any post-
constitutionalism in Cyberspace (Lessig, 1996e), then this is not one of 'big'
international treaties and intergovernmental committees but rather one that is
organically produced by encouraging the representation not merely of humans but also
of non-humans, of practices and legal systems, one that takes into consideration national
legislations and one that re-introduces direct participation. This is done not merely by
choosing a pre-constructed solution but also by actively taking part to the formation of
the regulatory instruments. The duality of the regulatory commons aspect of the project
also illustrates that the development of technical regulatory forms such as standards
(Hanseth, 2002a; 2002b) where there is greater focus on participation rather than on
enforcement is a more effective way of producing regulation in multi-modalities cross-
jurisdictional contexts.
7.3 Conclusion
The kind of construction tools employed in overall by the Creative Commons project is
instructive of its overall stance to provide more regulatory autonomy to the ends of the
regulatory network and the extended Lessig conceptual framework we presented in
section 7.1 is indicative of this trend. It is interesting to note that direct inhibition or
coercion as a behavioral association construction technique does not feature at all as an
option in the Creative Commons project. Such strategy of regulatory means for the
construction of associations comes in stark contrast to the ways in which the classic
Copyright project operates. The latter seeks to achieve its objective (a) with coercive
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means such as technologies not only allowing particular forms of behavioral patterns to
emerge but also prohibiting others from being expressed and (b) with the extensive use
of litigation deployed as a direct threat to the formation of specific behavioral patterns.
Even in the case where defensive construction and tying techniques are used, these are
directed from the exotic regulation to the native regulation and hence tend to have great
regulatory costs.
The Creative Commons project, instead, seeks even during its most aggressive stage
[i.e. during the construction of the framework in which the cultivation of the regulatory
commons is to take place (section 7.2)] to use as unobtrusive construction techniques as
possible not merely for the native (section 7.2.3) but also for the formal regulatory
environment (section 7.2.4). In the cases where the two seem to clash, the Creative
Commons project consistent to its regulatory commons approach (section 7.3), seeks to
break down the problematic areas into smaller parts where defensive constructions are
possible or seeks to allow the expression of different opinions so that an agreement is
achieved. The focus on reaching agreement in the form of an ad hoc social contract
indicates the regulatory dimension of the CC project, that is, that it views the issue of
creative commons as an issue of diminishing regulatory distantiation and achieving at
least temporary stability through a negotiation process. At the same time as the project
seeks to eradicate points of tension, other ones constantly arise. We indicative mention
the case with the controversial definitions of what constitutes “Free”; the operation of
licence elements such as the NonCommercial; or the inclusion of Digital Rights
Management prohibition in version 3.0 of the CC licences. The CC project, while
seeking to achieve consensus seems at the same time to be interested in allowing
dissidence to be expressed and this is particularly relevant in the case of the mailing lists
or the iSummits where different opinions have the opportunity to be aired and debated
(section 7.3).
In this section we had the opportunity to see how the different Chapters of the thesis
come together in a coherent whole combining the critical theoretical analysis and the
comprehensive analysis and presentation of the CC project empirical data. In the first
part of this chapter (section 7.1 to 7.1.2) we have presented how the various theoretical
chapters of the thesis relate to each other and expanded Lessig’s conceptual framework
presented in chapter four. The second part of this thesis (sections 7.2 to 7.3) examines
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the analysis results presented in chapter six in the light of this expanded conceptual
framework to illustrate how the CC project is mainly geared towards the creation of a
regulatory commons and how such an effort contributes to the establishment of the
creative commons.
The discussion presented in this chapter concludes that the CC project is a primarily
political project seeking to provide regulatory autonomy to the creator. An association
construction-cultivation model allows an understanding of its primary function as an
effort to establish a regulatory commons, where access to the formal regulatory
instruments of the CC licences is achieved in non-discriminatory terms. While this
access seems to be unconditional, a detailed investigation of the framing factors and the
participation patterns reveals that the discussion is directed in an unobtrusive fashion
towards the establishment of the creative commons. The chapter concludes by
emphasizing the political dimension of the CC project and the reasons why its technical-
licence construction and political-representation functions cannot be really separated.
This sets the background for the following chapter where the findings and contributions
of the whole thesis will be presented in greater detail.
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Chapter Eight Conclusion
8. Introduction
This chapter concludes the research conducted in this thesis, presents its achievements
and contribution, and proposes areas of further work. It begins by providing a brief
overview of the research. It then presents the findings and contributions derived from
the empirical research reported in this dissertation. The novelty claimed is summarised
together with the findings. The limitations of the research undertaken are then identified
and presented, and the author proposes that these limitations should be considered when
interpreting results. Finally, this last chapter concludes with the identification and
discussion of further research directions.
8.1. Research Overview
This thesis constitutes an effort to re-conceptualize the CC project as a project primarily
seeking to produce regulatory commons and as a result to allow the flourishing of
creative commons (section 6.45). The core of the idea of regulatory commons is that
every regulated subject should have access in non-discriminatory terms to the regulation
development process. Our analysis of the interaction between Copyright and
Technology (chapter three) reveals that what the literature has identified as a problem of
the eradication of the Commons (sections 3.2 and 3.3) is in fact a problem of
distantiation of the regulated subject from the means of regulatory production (sections
3.6, 4.4.1 and 4.4.2). The CC project analysis indicates that its primary aim is to
diminish this distantiation by allowing a more participative model in the regulation
production process (chapters six and seven). This model, which in this research is
presented as an association cultivation-construction model (section 7.2), may with a
careful but mild and unobtrusive intervention lead to the establishment of the creative
commons.
The first chapter of this thesis presented an overview of the basic elements of the
critique of the CC project trying to identify the points of tension (section 1.3). It also
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gave a first indication why seeing the CC project as directly aiming at the development
of creative commons presents a series of problems. At the end of the chapter a set of
basic questions related to the CC critique are illustrated and indicate the directions the
thesis will follow (section1.4).
Chapter two illustrated the basic features of the critique of the CC project. It identified
the basic features of the CC project (section 2.1); the types of critics assessing the CC
project (academics, practitioners, activists) (section 2.2), the underlying ontology of the
CC critique (section 2.3), the reasons why we choose to focus on Elkin-Koren’s work
(section 2.4), the image of the CC project in Elkin-Koren’s work (section 2.5), the basic
features of Elkin-Koren’s critique of the CC project (section 2.6), the problems of CC
meaning construction efforts (section 2.7) and finally the link between ideological
fuzziness and the CC licensing problem (section 2.8). This critique allowed the
identification of the main points of controversy and consensus within the CC project
that could be then used in order to explore the nature of the CC project.
The third chapter investigated the interaction between Copyright and digital
technologies through a critical review of the relevant literature (section 3.1). The
introduction of technologies that allowed mass-micro non commercial infringement has
caused increasingly more aggressive regulatory measures with adverse effects on
creativity (section 3.2). The whole problem of the unintended consequences of the
regulatory response to technological change was expressed in the literature in terms of
the IPR environmentalism movement. The latter sought to protect the Public Domain
from its eradication caused by expansive proprietary rights (section 3.3). Copyright and
the Commons were presented as constructed entities based on certain assumptions
susceptible to change (section 3.4). Different conceptualizations of the Commons on the
basis of different models were presented in section 3.5, whereas the chapter concluded
with a concrete presentation of the distantiation phenomenon (section 3.6).
Chapter four constituted a detailed presentation of Lessig’s work trying to link the
scattered elements of regulatory ontology in his extensive work over the last two
decades. The first part of chapter four (section 4.1) dealt with the issue of change as
construction and the ways in which regulatory tools could be employed in order to
achieve different types of construction. The next section (4.2) focused on specific
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variables for assessing the results of regulatory efforts such as internalization,
immediacy and plasticity. In section 4.3 we explored Lessig’s four modalities of
regulation and section 4.4 investigated the overall problems of regulation in
Cyberspace. All sections contribute to the creation of an association vocabulary to
describe the regulation constitution process. In particular, we saw how Lessig identifies
as the main problem of Internet regulation the privatization of regulatory means and the
exclusion from the regulation production stage (sections 4.4.1 and 4.4.2). In section
4.4.3 we presented Lessig’s proposal to follow a FLOSS-like model to increase
participation to privatized regulatory forms. The chapter concluded (section 4.5) with an
illustration of the trajectory of Lessig’s work and the way we may understand his
research objectives.
Sections 4.5.1 to 4.5.3 positioned Lessig’s work in the relevant streams of literature.
Section 4.5.1 examined the links between Lessig’s work and regulatory theory,
particularly the work of Black, Teubner, Scott, Baldwin and Brownsword. The ideas of
post-regulatory state, decentered regulation, situational regulation and regulatory
conversations were juxtaposed to Lessig’s regulatory vocabulary. In section 4.5.2, we
related Lessig’s work and the basic workings of the CC project to FLOSS literature.
Finally, section 4.5.3 dealt with common features in Lessig’s work and Information
Infrastructures and standards design to identify common approaches also with
regulatory theory and hence associate all streams of research presented in sections 4.5.1
and 4.5.2
Chapter five illustrated the overall research design and specific methodological
approaches of the thesis. Its first part (section 5.1) linked Lessig’s ontology with
Latour’s version of ANT in order to produce an epistemological framework that could
inform our research. A detailed presentation of the ways of collecting and analyzing
data was explained in the second part of the chapter (section 5.2). Since regulation was
presented as a constructed entity and the basic problem with Copyright and Cyberspace
regulation in general is participation to the constitution of regulatory associations
(chapters two and three), we have chosen to follow a methodological approach that
allowed the investigation of the association construction process in the case of the CC
project
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The sixth chapter presented the details of the CC case and the results of the analysis
process. CC was initially presented in terms of its ideological origins and basic
principles (section 6.1), and the means that it employed in order to achieve its objectives
(section 6.2). We then illustrated the basic operation of the licences and analyzed
patterns of participation (section 6.1), thematic representation (sections 6.2 and 6.3) and
interaction over the “cc licenses” mailing list (sections 6.4 and 6.5). The chapter
concluded by illustrating the main findings from the analysis of the CC project.
Chapter seven constituted a detailed discussion of the CC project that connected all the
previous chapters together: It illustrated how the critique presented in chapter one could
be answered as a result of the viewing of the CC as a regulatory commons project; it
expanded Lessig’s conceptual vocabulary on regulation (section 7.1); and it used
Lessig’s extended model of analysis in order to examine the central functions of the CC
project (section 7.2), that is, (a) the construction- cultivation of the CC licences on the
“cc licenses” mailing list and (section 7.2.1) (b) the process of allowing native forms of
regulation to be expressed in a formal regulatory instrument (sections 7.2.2 to 7.2.4) (c)
the ways in which the CC project may be seen as a political project allowing the
transition from the regulatory to the creative commons (section 7.2.5).
The final chapter of the thesis summarizes the results of the previous chapters,
illustrates the main findings and presents the limitations of the thesis and the main
avenues for further research.
8.2. Core Findings and Contributions
The presentation of the main research findings of this thesis plays a dual role: On the
one hand, it allows a linking of the various components of this thesis that have been
presented in the individual chapters; on the other hand, it facilitates the explication of
the main contribution related to each set of the findings.
The first set of findings relates to the development of a new variation of the regulation
concept and the related costs it entails. Such variation constitutes an extension of the
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notion of regulatory immediacy we have found in Lessig’s work (section 4.2) and
explained in chapter four. The discussion of the results from the CC project analysis
indicated that regulation could be further categorized in two types: exotic and native
regulation (section 7.1.2). The former is regulation that has been built with the explicit
purpose of being used for regulatory purposes and is normally expressed in or is related
to some sort of formal instruments, such as a law or a licence. Exotic regulatory forms
are external to the realm of social behavior they seek to regulate and as such they are
cost effective only if they are close to the native forms of regulation. The latter are
regulatory forms that do not appear as regulation and in that sense they may be found
mainly in the form of all four modalities of regulation but law. Native forms of
regulation have a greater level of immediacy and are thus according to Lessig’s analysis
less costly compared to exotic forms of regulation. File-sharing networks may be
considered as native forms of regulation. Our analysis of the CC project mailing lists
has demonstrated that the primary native regulatory form that was expressed in the CC
licences has been the need to share, reuse and remix material with minimal legal
friction. More specifically, the need to abolish accidental incompatibilities between
different forms of open/ free licences and to further clarify their terms and conditions
was expressed in the licences and found its place in the v.3.0 of the CC licences in the
licence compatibility section.
Native regulation is closer to the behavioral model of association construction and
particularly that of the ritual as defined in Lessig’s work (section 4.1.4) in the sense
that: (a) it is behavior centric (b) it does not appear as coercion (c) it is, nevertheless,
addressed from an authority to an entity that agrees to be subjected to the power of the
authority (section 7.1.2).
The closer a regulatory effort is to native forms of regulation the more cost effective it
is. The CC project is much closer to native forms of regulation than Copyright. CC
expresses in formal (licences) and informal (meta-data/ commons deed) regulatory
instruments native forms of behavior (share, reuse, remix). The tying efforts we have
identified in chapter six are the result of a conscious effort to associate with native
regulatory forms (sections 6.1 and 6.2). The multiplicity of licences (section 6.3) and
the non-intrusive participation of the CC staff to the discussions over the “cc licenses”
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mailing list (sections 6.4.4 and 6.4.5) are also expressions of an effort to encourage the
expression of native regulatory forms.
The concept of native regulation is further elucidated with the differentiation between
regulatory modalities and regulatory features (section 7.1.2). Lessig in his work
identifies four modalities of regulation (section 4.3): law, markets, technology, and
social norms. Our analysis indicates that this taxonomy should be complemented with a
further differentiation between (a) regulation that is explicitly built as such and may be
classified in Lessig's four categories and (b) artifacts that have been built with utilitarian
objectives in the mind of the designers or appear as such; nevertheless they have
regulatory features. Native regulatory forms do not appear as regulation but mostly as
utilitarian artifacts, irrespective of possible regulatory features they may have. The
disappearing of the regulatory features of an artifact constitutes an indication of
reduction of their regulatory costs as they become native. This is a primary difference
between file-sharing systems and Digital Rights Management systems that both channel
behavior towards a certain direction, while the latter clearly appear to be doing so and
the former not. One of the objectives of the CC licences is to appear as much integrated
to the utilitarian aspects of artifacts an in that sense to lower their regulatory costs.
A second set of findings relates to the counterproductive nature of the effort to
materialize a regulatory program of action through predominantly coercive construction
techniques (section 4.1.4), especially in environments where formal regulation is very
distant from native regulatory forms. Coercive enforcement efforts are likely to lead to
the cockroach phenomenon which is an extension of Grabosky's (1995)
counterproductive regulation phenomenon and Lessig's (1996b) and Kagan’s and
Skolnick’s (1993) snowball violation scenario (section 7.1.2): it is not merely that
regulation leads to infringements of the desired regulatory program of action in a
systematic scale, but also that it creates norms of deviance. Each generation of native
regulation produced as a reaction to the increasingly stricter enforcement of exotic
regulatory forms has characteristics that allow Copyright’s systematic violation in a
much greater extent; in addition, such responses invite retaliation from the exotic
regulation in even more intrusive ways. The cockroach phenomenon is a direct result of
the distantiation phenomenon between native and exotic regulatory forms and it
apparently leads to an increase to the regulatory costs.
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The cockroach phenomenon incurs two types of regulatory costs: active and passive
regulatory costs (section 7.1.2). The former type of costs comes as a result of the effort
to actively enforce exotic forms of regulation such as the copyright laws; it is expressed
in e.g. litigation costs, public awareness costs, enforcement authorities’ man-months etc.
Passive regulatory costs are the result of the costs imposed upon creators reusing
existing works that are potentially copyrighted. The analysis in Chapter Five indicates
that the Creative Commons project is not merely a project addressing passive regulatory
costs that seems to be the predominant model for understanding it in the relevant
literature; it is also a project that also seeks to produce a regulatory structure with
minimal active regulatory costs. CC's main regulatory strategy that seeks to reduce the
distance between native and formal regulation could contribute to the reduction of both
types of costs.
Lessig’s conceptual framework indicates defensive techniques of association
construction and the strategy of tying as the most cost effective (section 4.1.4). The
analysis of the CC case and the contrast of CC’s and Copyright’s awareness campaigns
indicates that it is more useful to assess the defensive or tying techniques not in abstract
but in relation to its distance from native regulation: the closer the defensive or tying
efforts are to native regulatory forms the more effective they are. The contrasting of
Copyright's and CC's awareness campaigns is illustrative: both cases are defensive
efforts of focusing meaning; however, the anchor point (section 7.1.3) in the case of CC
is native to the application domain regulation (share, reuse, remix), whereas in the case
of copyright we have to do with exotic regulatory patterns such as stealing of physical
not intangible property or formal regulatory forms such as copyright rules.
The third set of findings illustrates advances in some of Lessig’s concepts particularly
by presenting how the categorizations he proposes are not found as clearly demarcated
in practice as in his theoretical work (sections 7.2.1 to 7.2.5). The relevant concepts are
these of the ritual, indirection and substitution (section 4.1.4). The ritual is described in
Lessig’s work as a behavioral technique. The CC project analysis, particularly the
exploration of the iSummit 06 and the national CC project launches (sections 6.1 and
6.2), reveals that there is no clear demarcation between semiotic and behavioral aspects
of a ritual. In all such cases, the use of tying and defensive techniques for meaning
construction often operate as the formative context in which the ritual will operate and
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are part of its actual implementation. The theoretical contribution of such finding is that
it constitutes an expression of the need to eradicate the differentiation of associations of
material (behavioral, technical) and immaterial (meaning) nature as counterproductive
for the understanding of the regulatory costs issue. We believe that the three elements of
the ritual (authority, repetition, not appearing as coercion) identified in Lessig’s work
are much more important than its behavioral dimension and these should be the focus of
their use. It is also an indication of how Lessig’s conceptual ontology may be brought
closer to Latour’s ANT approach.
Similar are the advances this thesis makes to concepts such as substitution and
indirection (section 4.1.1). Substitution as many other concepts does not exist in its
clear form, in the sense that one modality of regulation is never entirely substituted by
another in the case of Copyright or the CC project. On the contrary we have cases of
certain functions of a certain modality (such as coercive association construction instead
of happening through the judicial and police system to occur by virtue of technical
measures of protection) in combination with indirection structures (e.g. law inter-
operating with technology as in the case of DRM and EULAs to achieve a certain
regulatory program of action). Lessig explicitly defins substitution and indirection as
phenomena occurring between different modalities of regulation, whereas what we have
seen from the Copyright critical literature review and the detailed analysis of the CC
project is that they occur mostly in terms of the regulatory level (e.g. substitution of law
from contracts) as well at the modality level.
This is a particularly important realization for understanding the regulatory issues
Copyright faces: the problem of substitution is in fact an issue of collective plasticity
and participation as well as immediacy problem (section 4.2). The Copyright classic
proprietary project indicates that there is a movement to those combinations of
substitution and indirection that are less collectively plastic and more coercively
immediate. The Creative Commons project on the other hand attempts to achieve
associations in a way so that it is more collectively plastic while retaining its non-
coercive immediacy. Interestingly in the latest stages of the CC project there is a trend
to move towards higher level regulatory forms in the form of second order commons
while the terms of participation and representation in such a new level still remain under
formation (sections 7.2.1 to 7.2.5).
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The next set of findings relates to the transition from indirection to reverse
internalization and from the concept of the meaning manager (section 4.1) to the one of
associations cultivator (section 7.2). Both the original concepts are directly derived from
Lessig's work and express the effort to produce a particular meaning through a
controlled effort where there is a clear vision for what the end result will be. The two
concepts we have derived out of the analysis conducted in chapter six (sections 6.4.1 to
6.4.5) indicate that there is a need to expand Lessig's notions towards a more pro-native
mode of regulatory strategy as a result of the need to reduce regulatory costs. Whereas
in indirection we witness the active effort to impose a particular meaning or set of
associations from one modality or level of regulation on another in order to achieve
internalization of the regulatory program of action by the regulated subject, in the case
of reverse internalization the objective is the opposite: not to impose a regulatory
program of action but rather to encapsulate an existing one and express it in a formal
regulatory form, in the case of the CC project the relevant licences.
This marks a crucial departure from the classic regulatory model that appears to be
aiming at an externalization of its program of action on the native regulation. CC
instead, seems to have as its point of departure the internalization of native regulatory
forms. Such development is essentially an evolution of a series of defensive
construction and tying techniques having the native regulation as their anchor point. It is
however an even less intrusive aspect of these efforts as it does not aim at producing a
certain set of associations by using these techniques but rather first to internalize native
regulation and then try to embed it in the relevant environment. Accordingly, the
concept of the meaning manager found in Lessig's work is to be substituted by the
concept of the association cultivator.
We have referred to the reasons behind the choice of associations rather than meaning in
this thesis in chapters four (section 4.1.2) and seven (section 7.2). The concept of
cultivator is different from that of the manager since we are not aiming here at a
construction but rather a cultivation process: construction echoes the controlled and
predictable production of a set of associations whereas cultivation implies that the
cultivator is not responsible for the existence of certain associations that of the native
regulation, but is the one responsible for allowing some of them to further develop and
evolve. The cultivator does not have full control over the produced regulation neither
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can predict the end regulatory result but is able to influence it towards a certain
direction. Such regulatory model seems to be ideal for environments of great
complexity and uncertainty that are likely to have great distance between the native and
formal regulatory forms and seek to reduce regulatory costs.
In the analysis (sections 6.1 and 6.2) and discussion (section 7.2.5) of the CC project we
have found that it is different from the FSF project which was initiated by the very same
community that has actually developed the native regulatory forms (software
developers) and were hence legitimized to define such rules in the text of the GPL. The
CC project initiated by lawyers and academics and addressed to a non-specific
application domain was of a much more exotic nature and needed hence to operate as
more as a cultivator and less as a manager. The non-interference aspects of the CC
project that are perceived by its critics as manifestations of liberalism are in fact
expressions of the associations-cultivator model. Similarly, the lack of a minimum set of
principles running all licences and the existence of more than one licences are
expressions of the same aspect of the project. Finally, the emergence of the second order
commons (section 7.2.5) is an indication that CC is not inherently opposing any
minimum principles but need to achieve legitimization through a cultivation process in
order to accept them.
The fifth set of findings relates to the combination of construction and cultivation
elements in the CC project (section 7.2). Though the cultivation model that is consistent
to an e2e association development in Lessig's ontology is an extension of the
construction models (section 4.1.4), the two are not mutually exclusive. As a matter of
fact the CC project presentation and analysis in chapter six reveals that they are
consistently used (other than direct coercion) in order to capture native regulation and
enforce formal regulatory content. Our analysis reveals that construction elements are
extensively used in the framing stage (sections 6.1, 6.2 and 7.2.1) of the association
building where the boundaries and overall direction of the project are set. The
construction elements of the CC project operate also during the project as static
cultivators (such as basic vocabulary, the licence itself and the functional specifications
of the mailing list) (sections 6.4.5 and 7.2.1); they are the signposts indicating how the
project will then evolve.
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Particularly interesting were the findings regarding the licences that operate as
regulators both externally (for those creators that will choose them to govern the
dissemination of their works) but also (and this is a counterintuitive aspect of their
operation) internally (section 7.2.1): the licences constitute the seeds that frame the
basic thematic areas in which the discussion will move and as such they regulate them
in a rather unobtrusive fashion.
We have identified two types of dynamic cultivators: CC and non-CC staff related. The
former seek to resolve controversies, whereas the latter are normally the cause of
controversy. Static and dynamic (section 6.4.5) cultivators interoperate in order to
achieve a mildly controlled result: static cultivators are factors of stability, whereas
dynamic cultivators are there to ensure that the discussions being fragmented,
incremental and repetitive do not present sclerosis features.
In overall, the technique of cultivation is used in conjunction with the technique of
construction (section 7.2) in the cases where construction has as its primary anchor
point (section 7.1.3) a regulation that is outside the native regulation of the domain on
which it is to be applied: in such cases it is necessary to internalize the native regulation
and hence a heuristic like cultivation and reverse internalization is required. It is
indicative (a) that the CC licences used mailing lists in order to get input from native
forms of regulation in contrast to the development of the GPL licences that were much
closer to the application domain (section 7.2.5) (b) that the issue of licence
incompatibilities in the case of the ShareAlike element as well as in the case of
minimum licence principles are the most popular issues of discussion over the list
(sections 6.4.2 and 6.4.3); they indicate an effort of trying to achieve reverse
internalization and absorb the trends of native regulation with respect to the contested
features of the CC regulation.
The sixth set of findings relates to the level in which the end-to-end model appears in
the CC project. Whereas projects like the GPL or project Gutenberg or the Open
Publication Licences are focused on enabling an end-to-end model for the production of
Copyrighted content (section 6.2), the CC project aims primarily at using the e2e model
for the production of a regulatory instrument, the CC licences (section 7.2.5). We have
seen in chapter four that Lessig was interested in FLOSS as a model for technology-as-
regulation production that ensured a minimum of participation unlikely the traditional
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proprietary model that had only individual plasticity (sections 4.4.2 and 4.4.3). In the
case of FLOSS the regulatory object is the software with its regulatory properties,
whereas in the case of the CC project the regulatory objects are the licences. The same
type of technical instrument is used in both cases, mailing lists (sections 6.4.4-6.4.5,
7.2.5), that were also used for the production of other technologies of a more explicitly
regulatory nature, i.e. Internet standards by the IETF.
The fact that the end product, i.e. CC licences containing the SA element, support a
similar development model for the content that is disseminated under their terms
together with the CC rhetoric that associates its objectives directly with those of Free
software is the cause of much of the misconception about what is the level in which the
e2e model is primarily used in the CC project (section 4.5): it is the regulatory commons
that are produced in the CC project and only through them are the creative commons
produced (section 7.2.5).
Having identified the level of Commons in the CC project, we were able to explore the
way in which the regulatory commons contribute to the establishment of the creative
commons. By allowing native regulation to be expressed in the formal regulatory
instruments of the licences (section 7.1.2) in a way that has been framed by the static
cultivators to direct towards the creative commons (section 7.2.1-7.2.4) it is highly
unlikely that the ends of the regulatory network will seek to create yet another
proprietary project. Our empirical data indicate that even in the cases where participants
to the discussions have tried to give a more proprietary direction to the licence building
discussion, even at the earlier stages where the direction of the project was still less
stabilized, they have been prohibited by the dynamic cultivators (section 7.2.5).
At the later stages of the development of the project there is a clearer direction towards
forms of regulation that are closer to the native forms regulation and the relevant
creative practices; this is apparent from the most dominant theme, the need to establish
interoperability, that has also been expressed in the interoperability clauses of v.3.0 of
the licences (section 6.4.3). Following the ability that technical-native regulation over
the Internet encourages sharing, reuse and remix of material, the discussion about
principles upon which compatible Free licences could by based and Lessig's
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determination to support such creative practices with the CC project has led to the
relevant v.3.0 provisions.
The next stage relates to a regulatory cost-related explanation of why it is not advisable
to leapfrog directly to the creative commons stage without passing through a regulatory
commons stage: by seeking to impose an exotic form of regulation, the same regulatory
costs as the ones incurred in the case of the classic proprietary project would re-appear.
Even in the case that such regulation expressed current native regulation, if there is no
mechanism in place to keep receiving input from the application domain, it would
sooner or later become exotic regulation with all the subsequent problematic effects
(section 7.2.5).
The CC project does not object to the existence of a minimum set of principles
governing all licences (section 2.8.4) provided such principles are the outcome of
collective decision and this is the trend indicated both by the compatibility clauses of
v.3.0 of the licences and the tendency towards politicization of the iCommons
organization and the iSummit event. This is the idea of creative regulation (section 6.2):
regulation needs to constantly innovate in order to be in tune with the developments in
its application domain and to be able to incorporate the regulatory program of action of
native regulatory forms. This creative dimension of regulation may be achieved through
the establishment of an e2e or regulatory commons model for its production in the same
way as creative production and innovation is possible in the case of the FLOSS model.
The last set of findings relates to the political and technical nature of Copyright's
regulatory problems and the CC project as a response to them (section 7.2.5). The
Copyright regulatory problems as described in the above findings are all collective
representation problems: the distantiation problem (sections 3.6. 4.4.3 and 4.5) is a
political problem of having actors not being represented in a regulatory instrument that
defines their association building capacity; the problem of the IPR ecosystem and the
term environmentalism used by Benkler (Benkler, 2001) and Boyle (Boyle, 1997a) in
their respective work describes the issue of eradication of the Commons in political
terms (section 3.3); Lessig's Fair Use Plus (Lessig, 2005j) conceptualization of a
response to Copyright's problems is a political one asking for greater participation by
the creator by allowing some uses of her work that would be otherwise prohibited
(section 6.1); part of the critique of the CC project is also political in the sense that if the
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latter reinforces private regulatory forms and proprietary solutions [e.g. (Elkin-Koren,
2006a) or (Berry and Moss, 2005)], then it may exclude others from the participation to
the formation of rules that have a broader societal impact (e.g. sections 2.8.2 and 2.8.3).
Accordingly, CC as a regulatory commons solution is also political in its nature (section
7.2.5): it seeks to overcome the distantiation phenomenon and minimize the costs it
entails by allowing greater participation in the formation of the regulatory instruments
and by enabling native regulatory forms to be expressed. The CC project needs to
appear as political in certain of its aspects and non-political (or technical) in some
others. The concept of the 'pedigree of associations' (section 4.1.2) contributes to the
understanding of the dual nature of the CC regulatory cultivation process: it needs to
appear political in order to maximize participation to the formation of the regulatory
instruments, achieve legitimization and minimize distantiation; at the same time once an
agreement has been reached in relation to a particular aspect of the project (e.g. a
licence element) it needs to appear as non-political or non-contested in order to
formulate a solid building block to further advance the project.
This is the reason why the arguments that have the strongest agreement to back them up
appear after a point as non-contested in the CC licence discussions: their representation
cycle has been -at least temporarily- completed. This is also the reason why the CC
leadership would like to have the CC licensing project appearing as non-political so that
it may be used by the end-user in a non problematic way and the iCommons project
political so that new ideas emerge and native regulation are expressed (sections 6.4.4
and 6.4.5).
The problem with such separation is that it is not really possible, since the building of
the licences is both a political and a technical process where the reasons for introducing
a particular provision are of both kinds. The Technical Protection Measures in the
discussions for v.3.0 of the licences is an archetypical example of the inability to
achieve such separation: Anti-TPM/ transparent copies language is initially introduced
in the CC v.3.0 licences in order to achieve interoperability between CC and other Free
content licences; however, in order to achieve such compatibility they require the
political backing of the Debian and FSF groups that do not have a consistent policy
regarding transparent copies with each other. The final decision, as indicated by the CC
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legal counsel (Garlick, 2007), was made on political as well as technical grounds
(section 6.4.3).
Summing up, the contributions emerging from this thesis may be positioned in the
theoretical, methodological and practical level. In terms of the theoretical contributions,
most of the findings explicate in coherent way and advance the basic components of
Lessig’s regulatory conceptual models; the research also draws extensive links between
Lessig’s work and Latour’s version of ANT and develops common vocabulary to be
used by the Information Systems and Commons literature (sections 5.1, 5.1.1 and 5.1.2).
The methodological contributions of this thesis primarily relate to the presentation of a
detailed method for visualizing and assessing participation and interaction over mailing
lists through the use of a combination of qualitative and quantitative techniques though
always from a critical perspective. Finally, in terms of practice, this research contributes
to the understanding of the political and regulatory dimensions of the CC project and
allows its potential improvement by a clarification of its identity and objectives. It also
contributes both to the literature and practice of assessing regulatory costs and allows
the development of regulation building strategies following a model of appreciating the
individualities of native regulation before attempting any regulatory intervention.
8.3 Limitations
The limitations in this research are of two primary categories: limitations arising by the
research design as well as methodological approach followed and limitations appearing
in relation to the scope of the research.
In terms of the theoretical approach of the thesis, by focusing on Lessig's
conceptualization of regulation we deviate from the classic literature on regulation that
is interested more in state-driven regulatory phenomena and is more geared towards an
analysis of the relevant regulatory instruments on the basis of legal doctrine. The main
area of theoretical contribution is that of the literature on the Commons and the
regulatory models presented in Lessig's work as well as the relevant association-driven
theoretical constructions, though there are works like the one by Brousseau (2005) that
seem to share common ground with the findings of this thesis particularly with respect
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to the findings of regulatory cultivation, native regulatory forms and reverse
internalization. The work of Teubner (2005) may operate as a link between the reverse
internalization model and the use of ANT in regulatory contexts and is related to the
second type of limitations.
A second aspect of the theoretical limitations has to do with the contributions of this
work to Actor Network Theory which is of a very specific kind. This thesis is only
informed by ANT concepts deriving particularly by two streams of the relevant
literature, that is ANT and technical standards literature [e.g. (Hanseth and Aanestad,
2002)], and the political side of artifact construction [e.g (Latour and Weibel, 2005)]. In
overall, it needs to be made clear that despite its apparent linking with and influence
from ANT related works this thesis does not claim to be an ANT focused research.
The evaluation of the analysis aimed at illustrating the way in which regulatory
commons allow the establishment of creative commons and was accordingly limited by
its set objective. An additional limiting factor are the various aspects of the CC critique
identified in chapter two that operated as sign posts for the mode of inquiry to be
followed in the case of the data analysis results. It is important to clarify that objective
of the empirical part of the research has been to examine how the CC project has
reversely internalized the native regulation of the environment and more specifically the
mechanisms it has employed in order to make this possible. This is the reason why it
has been so much focused on material deriving from the CC project or discussions
happening in the context of its virtual premises such as the “cc licenses” mailing list. It
also needs to be highlighted that though the results from the CC project analysis are
generalizable, the generalization process needs to be conducted with great care taking
into consideration the individualities of the CC project and examining whether further
variables could be introduced in the case of a state-driven regulatory project.
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8.4 Avenues for Further Research
The nature of this research as exploratory work has as a direct result the possibility of
multiple further research possibilities, mainly aiming at overcoming some of its
limitations identified in the previous section.
A first possible theoretical extension of this thesis is to the direction of linking Lessig's
revised conceptual framework with existing regulatory theory particularly the one
dealing with technology regulation and modern forms of self-regulation or reflexive
regulation in different contexts. Such investigation could allow a validation of the
regulatory costs model and its possible extension or refinement through the use of
theoretical and empirical constructs from more classic regulatory forms. The work of
Andrew Murray [e.g. in (Murray, 2007; Murray and Scott, 2002)] or Eric Brousseau
(2005) could operate as bridge for the technological stream of regulation, the work of
Julia Black [e.g. In (Black, Lodge and Thatcher, 2005)] could facilitate a linking with
the more classic regulatory theory on de-centralized forms of regulation, the work of
Braithwaite in terms of reflexive regulation (Braithwaite and Drahos, 2000) and finally
the work of Teubner on the use of ANT for the representation of non-humans in
regulatory instruments (Teubner, 2005). The idea would be to see which of the elements
in Lessig's work as revised through the empirical study of the CC case could be further
advanced by comparing the streams of literature represented by the aforementioned
authors. It would also be interesting to explore the degree to which these authors could
contribute to the further elucidation of the CC as a regulatory commons phenomenon. A
first linking between the different literature streams has been conducted in sections 4.5.1
to 4.5.3 but a more comprehensive analysis would be desirable.
This research could be further advanced towards the direction of the work of Boyle
(2003c; 2004) or Benkler (2006) in relation to a further exploration of the way in which
complex regulatory environments and institutional ecosystems operate that could
support or be to the detriment of creativity and innovation. Alternatively, this research
could be used to further advance Littman’s [e.g. in (Littman, 1991)] or Drahos’ and
Braithwaite’s (2004) work on the locus of policy decision making in relation to
Intellectual Property Rights.
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Another direction to which this work could be further explored is towards the direction
of the use of standards and ANT. Here the interest would be in conducting a more
thorough comparison between regulatory instruments that have their origins in state
regulation such as the CC licences and regulatory instruments with of a more utilitarian
or technical nature such as technical standards or even artefacts that are viewed as
utilitarian objects though they may have strong regulatory properties. The streams of
literature that would be most relevant in this case would be the ANT literature that has
been partially also used in this thesis such as the ANT and standards literature (Hanseth,
Jacucci, Grisot and Aanestad, 2006) as well as the 'thing-politics' type of literature
(Latour, 2004; Latour and Weibel, 2005) that emphasizes the political aspects of the
construction process and explores the operation of representation in such contexts.
Another interesting investigation would be to examine the way in which the cultivation
model in conjunction with the regulatory costs idea could operate in the context of risk,
control and information infrastructure literature. An idea that would be interesting in
exploring is the way in which Claudio Ciborra's (2000a) concept of drift and the
subsequent work on it could be further advanced by the model of the cultivation-
construction. It is interesting to note that Ciborra's (2000c) empirical data in his original
texts on the concept of Drift were based on a corporate intranet infrastructure having to
a great extent the same fundamental regulatory features as the Internet Protocols, the CC
mailing lists or the General Public Licence, that is an e2e structure This is a good
indication together with Ciborra's later work on FLOSS that there is space for mutual
contributions and a research area that needs to be further explored.
Methodology-wise an obvious area of further research is within the CC project itself.
The case study could be enriched by studying greater parts of the 'CC licenses' mailing
list, particularly in the last two years in order to acquire deep thread data for longer time
periods and see how cultivators of all types operate in such environments as well as
whether the same thematic areas keep repeating in large data sets.
The identification of native regulatory forms as an important starting point for any
regulatory intervention is of particular relevance to the way in which study of regulatory
forms could be conducted in the future by giving equal attention to the formal
regulatory forms that are sought to be enforced as the existing native regulatory
formations. What this thesis suggests is that a new area of research should be gradually
338
developed, that of regulatory ethnography, where the basic native regulatory forms in a
context are identified, explicated and thus being used as the mould which will shape
formal forms of regulation. The devising of heuristics to conduct this regulatory
ethnography and then express it in regulatory terms is possibly the most crucial call this
thesis is making for future research in this domain. The Information Systems discipline
has a greet experience in using social methods of inquiry for identifying the
individualities of the problem domain and perhaps some of these methodologies should
be also transferred in regulation building theory and practice.
The regulatory costs model as developed in this research is to a great extent a first
expression of a device for assessing the scope and impact of regulatory distantiation but
is still in the level of a prototype. Further work is required in order to refine its variables
and possibly move towards their quantification so that we have a regulatory policy tool
that could be used in order to assess the adverse environmental effects of distantiated
regulation. It also remains a question to be discovered whether such a model could
move to the next stage and be transformed into an economic model for the features we
should be looking in a regulatory instrument and the way in which they evolve during a
regulatory artefact's life-cycle.
8.5 Conclusion
The very final part of this section and the thesis itself relates to the political dimension
and contribution of this research. One of the major objectives of this thesis was to
emphasize that the CC project makes sense only if it is seen as a political project. CC is
a project dedicated to the construction of a regulatory artefact in a participatory fashion,
as a regulatory commons. This thesis argues that such an approach will eradicate the
distantiation between the regulated subject and the regulatory development process and
will finally foster the creative commons since a creative commons structure seems to be
currently favoured by the native regulatory forms. The ideological fuzziness or
libertarian sentiments the CC project echoes are understood and accepted only as
expressions of a project that seeks to re-politicise the issue of regulation construction
339
and to position the regulator in a place where she will facilitate and not form the
regulatory result. The absence of a minimum set of basic principles governing all CC
licences may currently seem counter-productive, but if such principles are derived
through a deliberation process they are going to be of a much stronger pedigree than any
externally imposed set of principles. This is the tendency seen in v.3.0 of the CC
licences and this is what this thesis claims is the most cost efficient regulation-building
strategy: to move from a discussion of licences to a discussion of principles as an
expression of the way in which regulatory commons contribute to the creation of the
creative commons.
All these results assume that CC will present itself as an increasingly explicitly political
project. Such politicization needs to be accompanied by a process of establishing
clearer rules of participation and representation at different levels. The existing mailing
lists system has proven in practice that it is operational but is increasingly reaching its
limits. FLOSS projects are assisted by Version Control and Bug Identification Systems,
whereas the CC project is currently only assisted by the FAQ wiki. Whether such thin
infrastructure is enough to sustain a process that inevitably becomes more political, with
the intensification of the discussion on licensing principles, remains an open question.
In the same way it remains a question how multiple communities (CC, FSF, Debian,
artists) and mailing lists (CC licenses, iCommons, Debian Legal) are going to interact in
the near future as the project matures and the need for more sophisticated tools appears.
This is a key area of future research on the CC project that is both of immense practical
and political nature.
The strategy by the CC leadership to 'cleanse' the CC project from any political
associations while moving such functions to the iCommons project may be founded in
some really good intentions related to how solid the legitimization of the licences
should appear; however, at the same time, it is impossible to put the licences into a
sanitized from politics environment, since such an act it would severely undermine their
function. The licences are the outcome of a constant representation process. The
reactions at the iSummit 06 and the subsequent discussions over the mailing lists
340
indicate that the licences will continue to be instruments of political debate concerning
the assumptions behind Copyright or the CC licences and the purposes such instruments
serve.
It is hence a necessary extension of this research to further explicate the political nature
of the CC project by communicating it to the CC community and by seeking for
feedback in the same way that the workings of the CC phenomenon feed into this thesis.
It is necessary for any research that relates to the CC project to be shared by the CC
community as the next stage of its development and to seek to become part of the effort
to cultivate a particular type of regulatory and creative commons. In a political project,
such as CC, any related research constitutes a political position; and this thesis cannot
be an exception.
341
Appendix I CC critique Table
Not clear what happens
Areas
when we of move
fuzziness
from
Not
national towhat
clear the
global Elkin- Mako-
Commons
commons is Koren
Berry Hill Chance
Core Freedoms in the
licences/ Open Access Elkin- Mako-
minimum Koren Berry Hill Stallman
Core Values of the
organization/ Ethical
position/ political stance/
governance/ finances/ Mako- Elkin-
broader view values Berry Hill Stallman Klang Koren Chance Hogge
Who's values are the
iCommons values Tarkowski
Who will benefit from the
global commons/ who
should be the partner to
CC Berry Chance
Not clear exactly how
licences work/ lawyers
are needed Berry Toth
More than one licences:
fragmentation of the Elkin- Mako-
Commons Koren Hill
If licences enforceable Elkin-
then asserts Copyright Koren
The use of licence
supports a permission
culture: the creator learns
to license her works – the
user seeks for licensing Elkin-
terms and conditions Koren Berry
Re-actionist not
proactive/ accepts Elkin-
Copyright Koren Berry
Organization/ movement/
licensing scheme/
phenomenon Ahlert Klang Hogge
What does free mean:
Not the same position as
the FSF (CC as free to
choose not free to
share)/ individualism/ Elkin-
pro-capitalism Mako-Hill Koren Berry
Far too clear cut no
political debate Berry Chance
342
Appendix II List of CC project features
List of Creative Commons
Features
It is something new
It adds new elements to the
existing Copyright System ad
needs it to exist
Seeks to grow as big as the
Copyright system
Seeks to reform copyright system
Share
Find
Build Upon
Collaborate
Actively ask to build upon your
work
Build Upon; create commons
On the Internet
Licence as the main tool
Many licences
Choose licence according to your
needs
Organizational Dimension
Open, democratic, transparent
Open as Inclusive
Global
Ideology
No intermediaries; ease of use
Clarification of rules
Reduce boundaries/ friction
Autonomy/ empowerment of the
creator
343
Appendix III Interaction pattern example
Thread: Question concerning Thread: Magazine Articles…
definition of non-commercial
{Penninckx, 2003c {Neokyo, 2003b {Silva, 2003 {Hove, 2003a
#459} #428} #361} #362}
{Brown, 2003r {Penninckx, 2003b {Brown, 2003e
#485} #429} #363}
{Penninckx, 2003d
#461}
Thread: Including trademarks
and logos in Commons-
{Penninckx, 2003e {Penninc li d bli i
#462} kx, 2003f
{Olson, 2003a
#350}
{Linksvayer,
2003a #351}
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