Tuesday, March 14, 2006

Cultural Environmentalism at 10: Molly van Houweling


Van Houweling addressed a criticism of Creative Commons and open source licensing, which is that they create more elaborate property rights schemes which later trip up people who are trying to navigate through a thicket of rights. Such restrictions pose “the problem of the future”: what happens if our understanding of the highest and best use of these works changes, and we’re still stuck with the licenses? She thinks this is a risk, but given that the background is copyright law, which has the same problems of uncertainty and constraint, the licenses are worth pursuing.

Peggy Radin (I understood her public/private point somewhat differently than Joe did): Copyright is distinct from a servitude because it’s imposed by law, not contract. Assault law is not a servitude on baseball bats, even though owners of baseball bats are constrained not to use them to beat people up. Servitudes are imposed by private parties, and democratic decisionmaking matters.

Radin’s always been rather worried about attempts to make restrictions run with the digital object, even for a good cause. Does the license really need to say “we own this copyright and there’s nothing you can do unless you understand our copyright”? There’s a possibility for backlash, because maximalists will like that better than open source folks.

Conservation easements required a democratically passed statute, as did marketable title statutes.

There is a utilitarian and nonutilitarian component of the freedom now versus freedom later debate. Should future generations be allowed to write on a clean slate? We can always rewrite the laws. Longlasting private arrangements from the past are harder to overwrite. (Comment: Can’t we rewrite the laws to disrupt the private arrangements?)

Yochai Benkler: Using the force of a metaphor as an analytical construct and example – the act locally move, from recycling to conservation easements. Molly invites us to take stock of a salient trend in the turn to “rolling our own,” protecting our work with licenses. She’s making her job too easy by comparing it to the baseline of copyright. The project has a movement building component and a cultural practices part and a licenses part licenses flow out of and reinforce cultural practices, and a movement comes out of licensing and relates to cultural practices. Licenses create these entities (GPLed code), and the movement reflects on law and tries to affect it. The problem with the future is easier with GPL and BSD but harder with Creative Commons (CC) because of potential internal clusters of different. Where is the balance? If you’ve got a much tighter license, you can rely more on the GPL to run the particular set of practices it encompasses but fewer people sign on and the background law covers more. Benkler doesn’t actually have a real guess about which is better for movement – more choice or narrower licenses.

Siva Vaidhyanathan's comments, on his blog.
Takeaway message: maybe small interventions are enough instead of grand theory. Restoring formalities, and GPL, are small ideas that can be spectacularly successful because of their modest goals.

Van Houweling: These techniques (collective production, licensing) are applied to science in ways that might help us cure cancer – or prevent us from curing it. Another project would be compare IP to the law of accretion: who gets rights to things they’ve built on other people’s property. Observers of IP might think property law is totally dense and doesn’t attend to ways in which it limits others’ autonomy – but property law can protect freedom to travel, freedom to eat, freedom to associate. Property law can help as long as we note unions and disunions between the fields.

Orin Bracha, responding to other comments: People dissatisfied with IP rules face a painful dilemma. CC and similar projects are usually second-best; the best would have been to change copyright law itself. We are trying to create cultural practices – not just stories, as with Tushnet’s paper, but practices to create ideology and political support for the first-best solution. (Comment: hunh? I could have sworn I was talking about practices. I suppose he means that fan creators are not consciously oriented towards changes in IP law, but I’m not sure that’s true, and I’m not sure that using a CC license makes you more likely to be activist in other ways.)

There’s a choice between radicalism and populism – go as far as possible and as open as possible, but hardly anyone will come if you do that.

Van Houweling: One premise of CC was that people were doing these nonproprietary creations anyway and we should get them out into the open. Recognition is helpful to the movement even if they were under the radar before.

Question: I’m concerned with the lack of safe harbors for very small uses, what happens if a relatively few lines of open source code get into software. Isn’t there a similar problem with CC licenses?

Van Houweling: Is this any different than copyright, which presents similar risks? Yes, because you’re not as likely to accidentally run across and reuse proprietary code as you are to accidentally reuse GPL code, so that is something to worry about.

Boyle: You can imagine people appealing to get an increase in rights so they can create a commons (my comment: e.g., GIs, as Sunder talked about – not all commons are open to all comers). What happens when the GPL goes from being what it is to the solution to everything – the GPL as a reason for enclosure? (See also Copyright Office report, relying on CC licenses to propose an attribution requirement in the law.)

Van Houweling: That’s a problem from the beginning with CC. People wanted a CC license for scientific data, except there are already no rights over scientific data. Are there other models for making commons other than building it out of property?

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