Madison thinks about IP at a fairly high level of abstraction, and is trying to think unconventionally, without defaulting to standard property/contract/commercial law forms. Creative Commons, the focus of the talk, is an example of interesting phenomena seen in the licensing space. “Self-governing goods” range from a device that comes with technological controls built in like DVDs to an object with a text-oriented restriction like a shrinkwrap license. Those are usually put into different categories, but Madison thinks they’re on a continuum and not conceptually distinct – this is the future of IP. CC is a manifestation of that practice of creating self-governing information goods.
The method: IP is property, contract, commercial law with a little bit of free speech law mixed in on the copyright side. Conventional scholarship tries to blend these points of view, but that frustrates him because it doesn’t deal very well with new things like TPM-controlled devices. That also doesn’t match up well with how individuals and even firms ordinarily deal with IP objects. Actual experience should be worked into the structure of law, leading him to examine metaphor and conceptual experiences of the world. He is concerned with in systems and form and rigor, but also wants law to accept the fact that there’s a great deal of uncertainty, unpredictability and imagination in the world.
This is a supplement to existing ways of looking at the world, not an attempt to dethrone law and economics or any other theory.
What is CC in a modern IP sense? His thesis: CC is a kind of governance regime, specifying what can be done with a particular work, like shrinkwrap licenses and CSS on DVDs. It has a regulatory dimension and an enforcement component, but it doesn’t come from the government. It has a public-regarding character, but it’s not public in the conventional sense – not part of the Copyright Act. His intuition is that the CC license is a good thing, but it’s hard to map it onto our conventional doctrinal categories.
Four conventional views of the CC license: each has kernels of truth in it, but each misses something important. (1) CC license as contract. Consensual, bilateral, private ordering, involving consideration, offer and acceptance, etc. The license is explicitly written in the form of a contract. It presents itself as a (nominal) negotiation between author and user, which means a mechanism for taking both points of view into account, not just the author’s, which is good news. Bad news: this is not that clearly done; the contract language is distant from the ordinary CC logo you see. Also, the contract isn’t that well drafted. And at a conceptual level, Madison’s read of the CC project is that it’s an attempt to use the legal form to produce third-party benefits in a stable public domain, yet here is a bilateral legal form that isn’t easily reconfigured to do this.
(2) CC license as property. A covenant that runs with the code, borrowing Peggy Radin’s phrase. This tracks how you experience and encounter works on the internet. The bad news: What happened to the user? The author unilaterally decides what is & isn’t part of the work and the attendant rights. More theoretically, it’s not clear to Madison that people who make things have the right to label them unilaterally and control downstream use without being in privity with later users. The property model seems inconsistent with the underlying concern CC is trying to address, the anticommons/absence of a public domain.
(3) CC as copyright license rather than as license to ordinary property interests, parsing the legal rights in § 106 in a slightly different way. This is intelligible to us as IP lawyers, who work with slicing up copyrights all the time. Bad news: the licensor has taken a background set of legal entitlements, which is confusing and abstract and difficult in the best of worlds, and has now added a layer of complexity (e.g., the ShareAlike license, the attribution right). The other conceptual problem is that the CC license feeds the argument that we have too much of a permission culture as it is. The CC license doesn’t critique the permission culture; even if you want to use the work in a public-regarding way, you have to look at the CC permissions to see if it’s allowed.
(4) CC as expressive or communicative act, more like a trademark. It’s a sign that you’re an IP progressive; you don’t care what the text of the legal code actually says so much as you want to be in the same club as Larry Lessig (as who wouldn’t?). Lack of understanding of what a CC license does is still an important factor, since lots of people like the idea without deeply comprehending the terms. They don’t have a real interest in enforcing the license in a detailed way. It’s more of a certification mark, though he’s not arguing that they actually function doctrinally that way, just that there’s a symbolic consumer function. Now that some search engines allow search by CC licensing, CC is consistent with trademark’s search costs rationale – the label makes it easier to find the product with the defined characteristics. Bad news: this just doesn’t fit the doctrinal definition of trademark. Also, CC’s sponsors aren’t trying to get people to endorse CC generally but to actually accede to the specifics of the license.
Madison’s alternative conceptualization, which he thinks could also be used to analyze open source, patent pools, collective rights organizations, etc. Five minitheories, theories of the middle range:
First question: Place (and space). Most scholarship about the metaphors of place used by judges on the internet has been critical. In the proper hands, using a place metaphor can be quite helpful and not necessarily anti-progressive. We all use references to the landscape or layout of the legal territory, and that’s just a natural way that we look at the world. Start with the name, Creative Commons, an intentional evocation of the land-based commons. The CC license even calls itself a deed. Doctrinally that’s confusing, but metaphorically it’s like deeding interest in land to whoever comes on and uses it. Question: how does the user experience the CC license? You go to a homepage, or visit a website. CC doesn’t fully take advantage of the benefits of this place metaphor, which could make clearer who owns what.
Second question: Thing. Thingness, metaphoric as well as literal, is a big deal experientially and legally. Patent law is much more comprehensible to the extent that we can give concreteness to claims. Problems arise when you introduce things that create ambiguity about boundaries, such as the doctrine of equivalents. Copyright law is much worse on this score. How thinglike is the CC license? It’s designed to be machine-readable. We don’t know enough about how the license behaves in the world – how salient are the edges of this object that people are transacting in? As with place, also with thing – the more salient and vivid the edges, the more likely we as people and as a legal system are to want to find a way to validate it as an entity.
Third question: Groups. Even when we agree that individuals are constructed and situated, we usually focus on the individual. There are lots of places in law, including IP, where groups are really, really important. The rights of the “user” are really about rights of subgroups within the public – critics, scholars, historians, journalists, each with their own group definitions and norms. If you can articulate and see a group-level interest in the legal form, the legal form is more persuasive. Most persuasive parts of IP law are those that explicitly embrace collectivity, like patent pools and collective rights organizations. The participants know the domain, the rights, the scope of the rights – it’s complex, but comprehensible and it seems to work. Mechanical licensing can also be a great thing because it enables collective reuse of works. Open source licensing is more successful than CC on this score, because it’s designed to support a collaborative development process (oriented around a thing, the software program). The CC license is ultimately about downstream collaboration, but it’s not as clear and vivid a part of the CC program.
Fourth question: Narrative and story. Persuasive legal forms come with persuasive stories. (1) A static story interpreting what we see in front of us. (2) Less metaphorical and more rhetorical/literary, an aspirational story to remind us what we want to be. CC does better on the second – on the first, it’s not clear whether we have a creative commons or whether it doesn’t yet exist. CC’s aspirational story: We want a better future, but can’t trust Congress to give it to us, so we have to do it ourselves.
Fifth question: Governance. How thoroughly does the license express this regulation? Is it comprehensive, and does it define enforcement? If licenses are self-executing, we don’t need judicial or other involvement. In form, open source licenses seem comprehensive enough to be self-contained, while CC doesn’t seem to be quite there.
Further directions: How to distill this into a more concrete form.
Judge Rader: You discounted CC as a license because there’s no return for permission for each use. Why can’t you view it as a blanket license?
A: That’s what it’s trying to do. Madison sees a mismatch between ideology and rhetoric – if it’s an attempt to simplify copyright rights, it doesn’t get the job done by adding a new licensing regime. If you don’t have expertise in copyright, don’t have counsel, CC is trying to give a simplifying tool, but it’s not clear that CC works that way. [Niva Elkin-Koren’s critique.]
Rader: They’ve got the right to use, what more do they need? Legal fine points only make a difference when the lawyers and insurance companies come into it.
A: One reaction to my argument is “so what?” CC, do your stuff and we’ll talk when someone sues, which is quite unlikely. Should the legal system – legislatures, courts, Copyright Office – ignore what’s going on and let CC bop around on its own. Or do we like this stuff as a matter of public policy because it fills a statutory gap? If the latter is true, then maybe we should take some steps to make it easier to build out these licensing schemes. We could use the same concepts in interpreting things like shrinkwrap contracts or website terms of use – recognize them more readily when they’re salient and vivid to the user.
Rader: Once it has commercial impact, you do check it out. No corporate user is going to try to make money without checking out the terms. When it matters [interesting assumption] it will be fully assessed.
A: Not sure that’s true.
Rader: In that case, caveat emptor; they deserve what they get for trying to make money carelessly. [Caveat licensee? Sucks to be a small business?]
A: Consider whether adding an attribution right makes a difference to businesses, who may be used to dealing with statutory rights; they may not expect a standardized attribution term. If American IP law doesn’t tell you to look for attribution rights, it might be more understandable to overlook them, so a CC license needs to bring attribution to the attention of the end-user before we apply a caveat emptor argument.
Q: It will take only one or two cases to get this done.
A: Maybe, maybe not. If it’s possible for public policy – litigation or legislation – to influence this field, how hard will it be to do so? Until 1996, there was no widely understood definitive decision on the validity of shrinkwrap licenses. Then ProCD definitively says they’re enforceable. It’s a circuit court in a diversity case interpreting state law, but as a practical matter that one case shifted the whole landscape for practicing lawyers. Are CC licenses at a tippable stage, such that one well-placed litigation could solidify understandings? Is there enough commercial interest in how these things work such that the commercial bar is aching for an explanation? Madison isn’t aching for an explanation of CC licenses as such. A patent pool or a CRO could be an example of a commercially oriented commons about which we could also ask these five questions.
My comment: Law isn’t autonomous – the Copyright Office adds an attribution requirement because of an analogy to CC licenses, not because of reference to international models.
A: Yes, there’s an inescapable interdependence. You can still meaningfully talk about law as a distinct phenomenon, though the metaphors and experiences overlap within and outside “law.”
Laura Bradford: Is this a descriptive project or normative?
A: Much more descriptive. There may be contexts in which we don’t care about vividness, salience, transparency, etc., but asking these kinds of questions can help feed into normative accounts that help us figure out where we do need it.
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