Viral Spiral - How the Commoners Built a Digital Republic of Their Own potx

The viral spiral began with free software code that is free to use,not code at no cost and later produced the Web.. One answer, the Creative Commons CC licenses, a freeset of public lice

Brand Name Bullies

Silent Theft

Aiming Higher

Sophisticated Sabotage

(with co-authors Thomas O McGarity

and Sidney Shapiro)

The Great Hartford Circus Fire

(with co-author Henry S Cohn)

Freedom from Harm

(with co-author Joan Claybrook)

VIRAL SPIRAL

How the Commoners Built a Digital Republic of Their Own

David Bollier

© 2008 by David Bollier

All rights reserved.

No part of this book may be reproduced, in any form, without written permission from the publisher.

The author has made an online version of the book available under a Creative Commons Attribution-NonCommercial license It can be accessed at http://www.viralspiral.cc and http://www.onthecommons.org.

Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 38 Greene Street, New York, NY 10013 Published in the United States by The New Press, New York, 2008

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The New Press was established in 1990 as a not-for-profit alternative to the large, commercial publishing houses currently dominating the book publishing industry The New Press operates in the public interest rather than for private gain, and is committed to publishing, in innovative ways, works of educational, cultural, and community value that are often deemed insufficiently profitable.

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Acknowledgments vii

Conclusion: The Digital Republic and the

In this book, as with any book, dozens of barely visible means ofsupport conspired to help me It has been hard work, but any authorwith sufficient honesty and self-awareness realizes the extent towhich he or she is a lens that refracts the experiences, insights, andwritings of others It is a pleasure to pay tribute to those who havebeen helpful to me.

I am grateful to Larry Lessig, a singular visionary in developingthe commons as a new paradigm, for helping to make this book pos-sible He submitted to several interviews, facilitated my researchwithin the Creative Commons community, and, despite our sharedinvolvements in various projects over the years, scrupulously re-spected my independence It is also a pleasure to thank the Rocke-feller Foundation for generously helping to cover my research,reporting, and travel expenses

I interviewed or consulted with more than one hundred people in the course of writing this book I want to thank each ofthem for carving out some time to speak with me and openly shar-ing their thoughts The Creative Commons and iCommons staffwere particularly helpful in making time for me, pointing me to-ward useful documents and Web sites and sharing their expertise

I must single out Glenn Otis Brown, Mia Garlick, Joichi Ito,Heather Ford, Tomislav Medak, Ronaldo Lemos, and Hal Abelsonfor their special assistance

Since writing a book resembles parachuting into a forest andthen trying to find one’s way out, I was pleased to have many friendswho recommended some useful paths to follow After reading some

or all of my manuscript, the following friends and colleagues offeredmany invaluable suggestions and criticisms: Charles Schweik, Elliot

E Maxwell, John Seely Brown, Emily Levine, Peter Suber, Julie

Ristau, Jay Walljasper, Jonathan Rowe, Kathryn Milun, LaurieRacine, and Gigi Sohn It hardly requires saying that none of theseastute readers bears any responsibility for the choices that I ulti-mately made.

For the past seven years, the Tomales Bay Institute, recently named On the Commons, has nurtured my thinking and commit-ment to the commons (On the Commons has no formal affiliation

re-to the Creative Commons world, but it enthusiastically shares itscommitments to the commons.) I am grateful to my colleaguesPeter Barnes, Harriet Barlow, and Julie Ristau for their unflaggingsupport of my book over the past three years, even when it im-pinged on my other responsibilities

In the early stages of this book, Elaine Pagels was unusually erous in offering her help, and my conversations with Nick Bromellhelped pry loose some important insights used in my conclusion.Cherry Alvarado was of extraordinary help to me as she transcribedscores of interviews with unfailing good humor and precision I alsowish to thank Andrew Ryder for resourceful assistance in the earlystages of my research

gen-I have dedicated this book to my dear friend and mentor Norman Lear The zeal, imagination, and grace that he brings to thesimple imperatives of citizenship have been more instructive and in-spirational than he perhaps realizes He has also been of incalculablesupport to me in my headstrong explorations of the commons.Finally, at the end of the day, when I emerge from my writer’s lair

or return from yet another research and reporting trip, it is Ellen and

my sons Sam and Tom who indulge my absences, mental and ical, and reacquaint me with the things that matter most I could notwish for more

phys-David BollierAmherst, MassachusettsMay 1, 2008

It started with that great leap forward in human history the net, which gave rise to free software in the 1980s and then theWorld Wide Web in the early 1990s The shockingly open Internet,fortified by these tools, began empowering a brash new culture ofrank amateurs—you and me And this began to reverse the fiercetide of twentieth-century media Ordinary people went online, ifonly to escape the incessant blare of television and radio, the intru-sive ads and the narrow spectrum of expression People started todiscover their own voices and their own capabilities andone another.

Inter-As the commoners began to take charge of their lives, they covered anew that traditional markets, governments, and laws wereoften not serving their needs very well And so some pioneers hadthe audacity to invent an infrastructure to host new alternatives: freeand open-source software Private licenses to enable sharing and by-pass the oppressive complications of copyright law A crazy quilt ofWeb applications And new types of companies that thrive on serv-icing social communities on open platforms

dis-At the dawn of the twenty-first century, the commoners began

to make some headway More people were shifting their attentionaway from commercial media to homegrown genres—listservs,Web sites, chat rooms, instant messaging, and later, blogs, podcasts,and wikis A swirling mass of artists, legal scholars, techies, activists,and even scientists and businesses began to create their own onlinecommons They self-organized themselves into a loosely coordi-nated movement dedicated to “free culture.”

The viral spiral was under way

Viral spiral? Viral, a term borrowed from medical science, refers

to the way in which new ideas and innovations on the Internet canproliferate with astonishing speed A video clip, a blog post, an ad-vertisement released on the Internet tumbles into other people’sconsciousness in unexpected ways and becomes the raw feedstock

for new creativity and culture This is one reason the Internet is sopowerful—it virally propagates creativity A novel idea that is openlyreleased in the networked environment can often find its way to adistant person or improbable project that can really benefit from it.This recombinative capacity—efficiently coordinated through searchengines, Web logs, informal social networks, and other means—radically accelerates the process of innovation It enlivens democraticculture by hosting egalitarian encounters among strangers and voluntary associations of citizens Alexis de Tocqueville would beproud.

The spiral of viral spiral refers to the way in which the innovation

of one Internet cohort rapidly becomes a platform used by latergenerations to build their own follow-on innovations It is a

corkscrew paradigm of change: viral networking feeds an upward spiral of innovation The cutting-edge thread achieves one twist of

change, positioning a later thread to leverage another twist, whichleverages yet another Place these spirals in the context of an openInternet, where they can sweep across vast domains of life and cat-alyze new principles of order and social practice, and you begin toget a sense of the transformative power of viral spirals

The term viral spiral is apt, additionally, because it suggests a

process of change that is anything but clean, direct, and mechanical

In the networked environment, there is rarely a direct effect Things happen in messy, irregular, indeterminate, serendipi-tous ways Life on the Internet does not take place on a stableCartesian grid—orderly, timeless, universal—but on a constantly

cause-and-pulsating, dynamic, and labyrinthine web of finely interconnected

threads radiating through countless nodes Here the context is as

rich and generative as any individual Viral spiral calls attention to the

holistic and historical dynamics of life on the Web, which has a verydifferent metaphysical feel than the world of twentieth-centurymedia

The viral spiral began with free software (code that is free to use,not code at no cost) and later produced the Web Once these openplatforms had sufficiently matured, tech wizards realized that soft-ware’s great promise is not as a stand-alone tool on PCs, but as a so-

cial platform for Web-based sharing and collaboration The moners could then begin to imagine: How might these tools beused to overcome the arbitrary and confusing limitations of copy-right law? One answer, the Creative Commons (CC) licenses, a freeset of public licenses for sharing content, helped mitigate the legalrisks of sharing of works under copyright law This innovation, inturn, helped unleash a massive wave of follow-on innovations.Web 2.0 applications flourished, many of them relying uponsharing made legal through CC licenses By avoiding the costlyoverhead of centralized production and marketing, and tapping into the social vitality of a commons, Web 2.0 platforms have en-abled ordinary people to share photos (Flickr), favorite browserbookmarks (del.icio.us), favorite news stories (Digg, Reddit), andhomemade videos (YouTube) They let people access user-createdarchives (Wikipedia, Internet Archive, Ourmedia.org), collaborate

com-in news gathercom-ing (OhmyNews, Assignment Zero), participate com-inimmersive communities (Second Life), and build open-businessmodels (Magnatune, Revver, Jamendo)

This book seeks to trace the long arc of change wrought by akaleidoscopic swarm of commoners besieged by oppressive copy-right laws, empowered by digital technologies, and possessed of a vision for a more open, democratic society Their movement hasbeen fired by the rhetoric of freedom and actualized by digital tech-nologies connected by the Internet These systems have made it extremely cheap and easy for ordinary people to copy and sharethings, and to collaborate and organize They have democratizedcreativity on a global scale, challenging the legitimacy and power ofall sorts of centralized, hierarchical institutions

This larger story has rarely been told in its larger scope It is atbase a story of visionary individuals determined to protect theshared code, content, and social community that they have collec-tively generated Richard Stallman pioneered the development offree software; Lawrence Lessig waged challenges against excessivecopyright protection and led the development of the CreativeCommons licenses; citizen-archivist Eric Eldred fought to preservehis online body of public-domain literature and the community

that grew up around it These are simply the better-known leaders

of a movement that has attracted thousands of commoners who are building legally defensible commons into which to pour theircreative energies and live their lives

The commons—a hazy concept to many people—is a new adigm for creating value and organizing a community of shared interest It is a vehicle by which new sorts of self-organized publicscan gather together and exercise new types of citizenship The com-mons can even serve as a viable alternative to markets that havegrown stodgy, manipulative, and coercive A commons arises when-ever a given community decides that it wishes to manage a resource

par-in a collective manner, with special regard for equitable access, use,and sustainability The commons is a means by which individualscan band together with like-minded souls and express a sovereignty

of their own

Self-styled commoners can now be found in dozens of nationsaround the world They are locally rooted but internationally awarecitizens of the Internet They don’t just tolerate diversity (ethnic,cultural, aesthetic, intellectual), they celebrate it Although com-moners may have their personal affinities—free software, open-access publishing, remix music, or countless others—they tend tosee themselves as part of a larger movement They share an enthusi-asm for innovation and change that burbles up from the bottom, andare known to roll their eyes at the thickheadedness of the main-stream media, which always seem to be a few steps behind

If there is an element of self-congratulatory elitism at times, itstems from the freedom of commoners to negotiate their own rulesand the pleasure of outmaneuvering conventional institutions Thecommoners know how to plug into the specialized Web sites andpractitioner communities that can provide just-in-time, highly spe-cialized expertise As Herbert Simon, the computer-oriented socialscientist, once put it, “The meaning of ‘knowing’ today has shiftedfrom being able to remember and repeat information to being able to find and use it.”1Commoners realize that this other way ofbeing, outside hierarchical institutions, in the open space where

viral spirals of innovation are free to materialize, is an importantsource of their insurgent power.

It is perilous to generalize about a movement that has so manydisparate parts pushing and pulling and innovating in so many dif-ferent directions at once Yet it is safe to say that the commoners—

a digital embodiment of e pluribus unum—share a common goal.

They wish to transcend the limitations of copyright law in order tobuild their own online communities It’s not as if the commonersare necessarily hostile to copyright law, markets, or centralized insti-tutions Indeed, many of them work for large corporations and universities; many rely on copyright to earn a livelihood; many areentrepreneurs

Yet the people who are inventing new commons have somedeeper aspirations and allegiances They glimpse the liberating po-tential of the Internet, and they worry about the totalizing inclina-tions of large corporations and the state, especially their tendency tostandardize and coerce behavior They object as well to processesthat are not transparent They dislike the impediments to direct ac-cess and participation, the limitations of credentialed expertise andarbitrary curbs on people’s freedom

One of the first major gatherings of international commonersoccurred in June 2006, when several hundred people from fifty na-tions converged on Rio de Janeiro, Brazil, for the iCommons Sum-mit The people of this multinational, eclectic vanguard blend thesophistication of the establishment in matters of power and politicswith the bravado and playfulness of Beat poets There were indiemusicians who can deconstruct the terms of a record company li-censing agreement with Talmudic precision There were Web de-signers who understand the political implications of arcane rulesmade by the World Wide Web Consortium, a technical standardsbody The lawyers and law professors who discourse about Section

114 of the Copyright Act are likely to groove on the remix career ofDanger Mouse and the appropriationist antics of Negativland, asound-collage band James Boyle and Jennifer Jenkins, two lawscholars at Duke Law School, even published a superhero comic

book, Down by Law!, which demystifies the vagaries of the “fair use

doctrine” through a filmmaker character resembling video gameheroine Lara Croft.2(Fair use is a provision of copyright law thatmakes it legal to excerpt portions of a copyrighted work for non-commercial, educational, and personal purposes.)

The Rise of Socially Created Value

The salience of electronic commerce has, at times, obscured an portant fact—that the commons is one of the most potent forcesdriving innovation in our time Individuals working with one an-other via social networks are a growing force in our economy andsociety This phenomenon has many manifestations, and goes bymany names—“peer production,” “social production,” “smartmobs,” the “wisdom of crowds,” “crowdsourcing,” and “the com-mons.”3 The basic point is that socially created value is increasingly

im-competing with conventional markets, as GNU/Linux has mously shown Through an open, accessible commons, one can efficiently tap into the “wisdom of the crowd,” nurture experimen-tation, accelerate innovation, and foster new forms of democraticpractice

fa-This is why so many ordinary people—without necessarily having degrees, institutional affiliations, or wealth—are embarkingupon projects that, in big and small ways, are building a new order

of culture and commerce It is an emerging universe of economic,social, and cultural activity animated by self-directed amateurs, citi-zens, artists, entrepreneurs, and irregulars

Hugh McGuire, a Montreal-based writer and Web designer, isone In 2005, he started LibriVox, a digital library of free public-domain audio books that are read and recorded by volunteers Morethan ten thousand people a day visit the Web site to download audiofiles of Twain, Kafka, Shakespeare, Dostoyevsky, and others, in nearly

a dozen languages.4The Faulkes Telescope Project in Australia letshigh school students connect with other students, and with profes-sional astronomers, to scan the skies with robotic, online telescopes.5

In a similar type of learning commons, the Bugscope project in the

United States enables students to operate a scanning electronic croscope in real time, using a simple Web browser on a classroomcomputer connected to the Internet.6

mi-Thousands of individual authors, musicians, and filmmakers areusing Web tools and Creative Commons licenses to transform mar-kets for creative works—or, more accurately, to blend the marketand commons into integrated hybrids A nonprofit humanitariangroup dedicated to doing reconstructive surgery for children in

poor countries, Interplast, produced an Oscar-winning film, A Story

of Healing, in 1997 Ten years later, it released the film under a

Cre-ative Commons license as a way to publicize Interplast’s work whileretaining ownership of the film: a benefit for both film buffs and Interplast.7

Scoopt, a Glasgow, Scotland–based photography agency, acts as abroker to help bloggers and amateurs sell newsworthy photos andvideos to the commercial media.8The Boston band Two Ton Shoereleased its music on the Web for free to market its concerts Out ofthe blue, a South Korean record label called one day to say it lovedthe band and could it come over to Seoul, all expenses paid, to per-form four concerts? Each one sold out.9Boing Boing blogger andcyberactivist Cory Doctorow released his 2003 science-fiction

novel, Down and Out in the Magic Kingdom, under a CC license,

reap-ing a whirlwind of worldwide exposure.10

The Commoners Build a Digital Republic of Their Own

The profusion of commons on the Internet may appear to be aspontaneous and natural development In fact, it is a hard-wonachievement An infrastructure of software, legal rights, practical ex-pertise, and social ethics had to be imagined, built, and defended In

a sense, the commoners had to invent themselves as commoners.They had to learn to recognize their own distinct interests—in how

to control their creative works, how to organize their communities,and how to engage with market players without being co-opted.They have, in fact, invented a new sort of democratic polity withinthe edifice of the conventional nation-state

The commoners differ from most of their corporate brethren intheir enthusiasm for sharing They prefer to freely distribute theirwriting, music, and videos As a general rule, they don’t like to en-case their work in airtight bubbles of property rights reinforced bytechnological locks They envision cyberspace more as a peaceable,sociable kingdom than as a take-no-prisoners market They honorthe individual while respecting community norms They are enthu-siastic about sharing while respecting the utility of markets Idealis-tic yet pragmatic, they share a commitment to open platforms, socialcooperation, and elemental human freedoms.

It is all very well to spout such lofty goals But how to actualizethem? That is the story that the following pages recount It has beenthe work of a generation, some visionary leaders, and countless in-dividuals to articulate a loosely shared vision, build the infrastruc-ture, and develop the social practices and norms This project hasnot been animated by a grand political ideology, but rather is the re-sult of countless initiatives, grand and incremental, of an extendedglobal family of hackers, lawyers, bloggers, artists, and other support-ers of free culture

And yet, despite its focus on culture and its aversion to ventional politics, the growth of this movement is starting to havepolitical implications In an influential 2003 essay, James F Mooreannounced the arrival of “an emerging second superpower.”11 Itwas not a nation, but the coalescence of people from around theworld who were asserting common values, and forming new publicidentities, via online networks The people of this emerging “super-power,” Moore said, are concerned with improving the environ-ment, public health, human rights, and social development He cited

con-as early examples the international campaign to ban land mines andthe Seattle protests against the World Trade Organization in 1999.The power and legitimacy of this “second superpower” do not de-rive from the constitutional framework of a nation-state, but fromits ability to capture and project people’s everyday feelings, socialvalues, and creativity onto the world stage Never in history has theindividual had such cheap, unfettered access to global audiences, bigand small

The awakening superpower described in Viral Spiral is not a

conventional political or ideological movement that focuses on islation and a clutch of “issues.” While commoners do not dismissthese activities as unimportant, most are focused on the freedom oftheir peer communities to create, communicate, and share Whendefending these freedoms requires wading into conventional poli-tics and law, they are prepared to go there But otherwise, the com-moners are more intent on building a kind of parallel social order,inscribed within the regnant political economy but animated bytheir own values Even now, the political/cultural sensibilities of thisorder are only vaguely understood by governments, politicians, andcorporate leaders The idea of “freedom without anarchy, controlwithout government, consensus without power”—as LawrenceLessig put it in 199912—is just too counterintuitive for the conven-tionally minded to take seriously

leg-Very early on, the commoners identified copyright law as amajor impediment to their vision of a “sharing economy.” It is notthat they revile copyright law as such; indeed, many commoners de-fend the importance of copyright law to creative endeavor Theproblem, they insist, is that large corporations with vast inventories

of copyrighted works—film studios, record labels, book publishers,software companies—have used their political power unfairly to extend the scope and term of copyright privileges A limited mo-nopoly granted by the U.S Constitution has morphed into an expansive, near-perpetual monopoly, enforced by intrusive tech-nologies and draconian penalties

The resulting curbs on citizen freedom, as large entertainmentand media corporations gain legal privileges at the expense of thepublic, is a complicated issue that I return to in chapter 2 But it isworth noting briefly why copyright law has been particularly harm-ful to the commons in the digital age When Congress enacted amajor revision of U.S copyright law in 1976, it eliminated a long-standing requirement that works had to be formally registered inorder to receive copyright protection.13Under the new law, every- thing became automatically copyrighted upon creation This meant

that all information and artistic work created after 1978 (when the

law took effect) has been born into an invisible envelope of propertyrights It sounds appealing to eliminate bureaucratic formalities likeregistration But the shift to automatic copyright has meant that

every digital scribble is born with a © branded on its side Culture = private property.

The various industries that rely on copyrights have welcomedthis development because it helps them portray their owner-ship rights as all-encompassing They can cast the public’s right touse works without permission or payment—traditionally guaran-teed under the fair use doctrine and the public domain—as excep-tions to the general rule of absolute property rights “What could bewrong with enclosing works in ever-stronger packages of propertyrights?” the music and film industries argue “That’s how new eco-nomic wealth is created.” The media oligopolies that control most

of television, film, music, and news gathering naturally want to protect their commercial content It is the fruit of a vast system offixed investment—equipment, high-priced stars, lawyers, distribu-tion channels, advertising, etc.—and copyright law is an importanttool for protecting that value

The Internet has profoundly disrupted this model of marketproduction, however The Internet is a distributed media system

of low-cost capital (your personal computer) strung together with inexpensive transmission and software Instead of being run by acentralized corporation that relies upon professionals and expertsabove all else, the Internet is a noncommercial infrastructure thatempowers amateurs, citizens, and ordinary individuals in all theirquirky, authentic variety The mass media have long regarded people

as a commodifiable audience to be sold to advertisers in tidy graphic units

demo-Now, thanks to the Internet, “the people formerly known as theaudience” (in Jay Rosen’s wonderful phrase) are morphing into adifferentiated organism of flesh-and-blood, idiosyncratic individu-als, as if awakening from a spell Newly empowered to speak as theywish, in their own distinctive, personal voices to a global public ofwhoever cares to listen, people are creating their own transnationaltribes They are reclaiming culture from the tyranny of mass-media

economics and national boundaries In Lessig’s words, Internet usersare overthrowing the “read only” culture that characterized the

“weirdly totalitarian” communications of the twentieth century

In its place they are installing the “read/write” culture that inviteseveryone to be a creator, as well as a consumer and sharer, of cul-ture.14A new online citizenry is arising, one that regards its sociallynegotiated rules and norms as at least as legitimate as those estab-lished by conventional law

Two profoundly incommensurate media systems are locked in astruggle for survival or supremacy, depending upon your perspec-tive or, perhaps, mutual accommodation For the moment, we live

in a confusing interregnum—a transition that pits the dwindlingpower and often desperate strategies of Centralized Media againstthe callow, experimental vigor of Internet-based media This much

is clear, however: a world organized around centralized control,strict intellectual property rights, and hierarchies of credentialed ex-perts is under siege A radically different order of society based onopen access, decentralized creativity, collaborative intelligence, andcheap and easy sharing is ascendant Or to put it more precisely, weare stumbling into a strange hybrid order that combines bothworlds—mass media and online networks—on terms that have yet

to be negotiated

The Rise of the Commoners

But who shall do the negotiating? Who will set forth a compellingalternative to centralized media, and build it? That task has fallen to

a loosely coordinated global federation of digital tribes—the freesoftware and open-source hackers, the Wikipedians, the bloggersand citizen-journalists, the remix musicians and filmmakers, theavant-garde artists and political dissidents, the educators and scien-tists, and many others It is a spontaneous folk-tech conspiracy thatbelongs to everyone and no one

As we will see in chapter 1, Richard Stallman, the legendaryhacker, played an indispensable first-mover role by creating a sover-eign domain from which to negotiate with commercial players: free

software The software commons and later digital commons spired by it owe an incalculable debt to Stallman’s ingenious legalinnovation, the General Public License, or GPL, launched in 1989.The GPL is a license for authorizing anyone to use a copyrightedsoftware program so long as any copies or derivative versions arealso made available on the same terms This fairly simple license en-ables programmers to contribute code to a common pool withoutfear that someone might privatize and destroy the commons.

in-As the computer revolution continued through the 1980s andthe Internet went wide in the 1990s, the antisocial, antidemocraticimplications of copyright law in networked spaces became more ev-ident As we will see in chapter 2, a growing community of progres-sive legal scholars blew the whistle on some nasty developments incopyright law that were shrinking the public’s fair use rights and thepublic domain Scholars such as James Boyle, Pamela Samuelson,Jessica Litman, Yochai Benkler, Lawrence Lessig, Jonathan Zittrain,and Peter Jaszi provided invaluable legal analyses about the imper-iled democratic polity of cyberspace

By the late 1990s, this legal scholarship was in full flower, net usage was soaring, and the free software movement produced itsfirst significant free operating system, GNU/Linux The common-ers were ready to take practical action Lessig, then a professor atHarvard Law School, engineered a major constitutional test case,

Inter-Eldred v Reno (later Inter-Eldred v.Ashcroft), to try to strike down a

twenty-year extension of copyright terms—a case that reached the U.S.Supreme Court in 2002 At the same time, Lessig and a number ofhis colleagues, including MIT computer scientist Hal Abelson,Duke law professor James Boyle, and Villanova law professorMichael W Carroll, came together to explore innovative ways toprotect the public domain It was a rare moment in history in which

an ad hoc salon of brilliant, civic-minded thinkers from diversefields of endeavor found one another, gave themselves the freedom

to dream big thoughts, and embarked upon practical plans to makethem real

The immediate upshot of their legal and techno ingenuity, as wewill see in chapters 3 and 4, was the drafting of the Creative Com-

mons licenses and the organization that would promote them Thepurpose of these free, standardized public licenses was, and is, to getbeyond the binary choice imposed by copyright law Why must awork be considered either a chunk of privately owned property or akind of nonproperty completely open to anyone without constraint(“in the public domain”)? The CC licenses overcome this stiflingeither/or logic by articulating a new middle ground of ownershipthat sanctions sharing and collaboration under specified terms Tostress its difference from copyright law, which declares “All RightsReserved,” the Creative Commons licenses bear the tagline “SomeRights Reserved.”

Like free software, the CC licenses paradoxically rely uponcopyright law to legally protect the commons The licenses use therights of ownership granted by copyright law not to exclude others,but to invite them to share The licenses recognize authors’ interests

in owning and controlling their work—but they also recognize thatnew creativity owes many social and intergenerational debts Cre-ativity is not something that emanates solely from the mind of the

“romantic author,” as copyright mythology has it; it also derivesfrom artistic communities and previous generations of authors andartists The CC licenses provide a legal means to allow works to cir-

culate so that people can create something new Share, reuse, and remix, legally, as Creative Commons puts it.

After the licenses were introduced in December 2002, they liferated throughout the Internet and dozens of nations as if byspontaneous combustion It turns out that the licenses have beenmore than a legal fix for the limitations of copyright law They are apowerful form of social signaling The licenses have proven to be aflag for commoners to advertise their identities as members of a cul-turally insurgent sharing economy—an aesthetic/political under-ground, one might say Attaching the CC logo to one’s blog, video,MP3 file, or laptop case became a way to proclaim one’s support forfree culture Suddenly, all sorts of participatory projects could beseen as elements of a larger movement By 2007, authors had appliedone or more of six CC licenses to 90 million works, by one conser-vative estimate, or more than 220 million works by another esti-

pro-mate Collectively, CC-licensed works constitute a class of culturalworks that are “born free” to be legally shared and reused with fewimpediments.

A great deal of the Creative Commons story revolves around itsfounder, the cerebral yet passionate Larry Lessig, a constitutional lawprofessor at Harvard in the mid-1990s until a move to Stanford LawSchool in 2000 As a scholar with a sophisticated grasp of digitaltechnologies, Lessig was one of the first to recognize that as com-puters became the infrastructure for society, software code was ac-

quiring the force of law His 1999 classic, Code and Other Laws of Cyberspace, is renowned for offering a deep theoretical framework

for understanding how politics, law, technology, and social normsshape the character of cyberspace—and in turn, any society

In popularizing this message, it didn’t hurt that Lessig, an rienced classroom lecturer, is a poised and spellbinding performer

expe-On the tech and copyright circuit, in fact, he has become something

of a rock star With his expansive forehead and wire glasses, Lessiglooks every bit the professor he is Yet in his signature black jeansand sport jacket, delivering punchy one-liners punctuated by arrest-ing visuals projected on a big screen behind him, Lessig makes apowerful impression He’s a geek-chic techie, intellectual, legal ac-tivist, and showman all rolled into one

From the beginning, Lessig and his colleagues wondered, Howfar can the sharing ethic be engineered? Just how far can the idea offree culture extend? As it turns out, quite far At first, of course, thefree culture project was applied mostly to Web-based text andmusic But as we see in chapters 5 through 12, the technologies andethic of free culture have rapidly taken root in many creative sectors

of society—video, music, books, science, education—and even ness and international arts and culture

busi-Remix culture.Thanks to digital technologies, musicians can sampleverbatim snippets of other musicians’ work in their own works, pro-ducing “remixes” that blend sounds from a number of copyrightedsongs It’s all patently illegal, of course, unless you’re wealthy enough

to pay for the rights to use a sample But that hasn’t stopped artists

In fact, the underground remix scene has become so robust thateven established artists feel obliged to engage with it to bolster theirstreet cred With a wink and a nudge from record labels, major rap stars like Jay-Z and Eminem have released instrumental tracks

of their records in the hope and expectation that remix auteurs will

recycle the tracks Record labels have quietly relied on mixtapes—personalized compilations of tracks—to gain exposure and credibil-ity.15 To help an illegal social art go legit, many artists are usingCreative Commons licenses and public-domain sound clips to build

a legal body of remix works

In the video world, too, the remix impulse has found expression

in its own form of derivative creativity, the mashup From

under-ground remakes of Star Wars films to parodies of celebrities,

citizen-amateurs are taking original video clips and mixing them withother images, pop music tracks, and their own narrations WhenAlaska senator Ted Stevens compared the Internet to a “series oftubes,” video clips of his rambling speech were mashed up and set to

a techno dance beat Beyond this playful subculture, serious makers are using CC licenses on their works to develop innovativedistribution systems that attract large audiences and earn money.Machinima animations—a filmmaking technique that uses com-puter game action sequences, shot with in-game cameras and thenedited together—are pioneering a new market niche, in partthrough their free distribution under a CC license

film-Open business. One of the most surprising recent developments has been the rise of “open business” models Unlike traditional businesses that depend upon proprietary technology or content,

a new breed of businesses see lucrative opportunities in exploitingopen, participatory networks The pioneer in this strategy was IBM, which in 2000 embraced GNU/Linux, the open-sourcecomputer operating system, as the centerpiece of its service andconsulting business.16 Dozens of small, Internet-based companiesare now exploiting open networks to build more flexible, sustain-able enterprises

The key insight about many open-platform businesses is that

they no longer look to copyright or patent law as tools to assertmarket control Their goal is not to exclude others, but to amasslarge communities Open businesses understand that exclusiveproperty rights can stifle the value creation that comes with massparticipation, and so they strive to find ways to “honor the commons” while making money in socially acceptable forms of advertising, subscriptions, or consulting services The brave neweconomics of “peer production” is enabling forward-thinking busi-nesses to use social collaboration among thousands, or even mil-lions, of people to create social communities that are the foundation

for significant profits BusinessWeek heralded this development in a

major cover story in 2005, “The Power of Us,” and called sharing

“the net’s next disruption.”17

Science as a commons.The world of scientific research has long pended on open sharing and collaboration But increasingly, copy-rights, patents, and university rules are limiting the flow of scientificknowledge The resulting gridlock of rights in knowledge is imped-ing new discoveries and innovation Because of copyright restric-tions and software incompatibilities, scientists studying genetics,proteins, and marine biology often cannot access databases contain-ing vital research Or they cannot easily share physical samples of labsamples When the maker of Golden Rice, a vitamin-enhanced bio-engineered rice, tried to distribute its seeds to millions of people inpoor countries, it first had to get permissions from seventy patentholders and obtain six Material Transfer Agreements (which governthe sharing of biomedical research substances).18

de-The problem of acquiring, organizing, and sharing scientificknowledge is becoming more acute, paradoxically enough, as morescientific disciplines become dependent on computers and the net-worked sharing of data To help deal with some of these issues, theCreative Commons in 2005 launched a new project known as theScience Commons to try to redesign the information infrastructurefor scientific research The basic idea is to “break down barriers tosharing that are hindering innovation in the sciences,” says John

Wilbanks, executive director of Science Commons Working withthe National Academy of Sciences and other research bodies,Wilbanks is collaborating with astronomers, archaeologists, micro-biologists, and medical researchers to develop better ways to makevast scientific literatures more computer-friendly, and databasestechnically compatible, so that they can be searched, organized, andused more effectively.

Open education and learning.A new class of knowledge commons

is poised to join free and open-source software, the Creative mons and Wikipedia as a coherent social movement The newgroundswell goes by the awkward name “Open Educational Re-sources,” or OER.19One of the earlier pioneers of the movementwas the Massachusetts Institute of Technology which has put virtu-ally all of its course materials on the Web, for free, through its Open-CourseWare initiative The practice has now spread to scores ofcolleges and universities around the world, and inspired a broaderset of OER initiatives: digital repositories for articles, reports, anddata; open-access scholarly journals that bypass expensive commer-cial publishers; and collaborative Web sites for developing teachingmaterials There are wikis for students and scholars working to-gether, sites to share multimedia presentations, and much more.The OER movement has particular importance for people whowant to learn but don’t have the money or resources—scholars indeveloping countries, students struggling to pay for their educa-tions, people in remote or rural locations, people with specializedlearning needs OER is based on the proposition that it will notonly be cheaper or perhaps free if teachers and students can sharetheir materials through the Web, it will also enable more effectivetypes of learning So the OER movement is dedicated to makinglearning tools cheaper and more accessible The revolutionary ideabehind OER is to transform traditional education—teachers im-parting information to passive students—into a more learner-driven process facilitated by teachers Self-directed, socially drivenlearning supplants formal, hierarchical modes of teaching

Com-The international sharing economy. Shortly after the first CC censes were released in 2002, dozens of exceptionally capable vol-unteers—from Japan, Finland, Brazil, South Africa, and othercountries—came knocking on the door of CC How can we adaptthe American CC licenses to our respective national legal systems?they asked This unexpected turn prompted the Creative Commons

li-to inaugurate Creative Commons International, based in Berlin,Germany, to supervise the complicated task of “porting” the U.S li-censes to other legal jurisdictions To date, CC affiliates in forty-seven nations have adapted the U.S licenses to their legal systems,and another seventeen have porting projects under way

The volunteers include avant-garde artists in Croatia, free ware programmers in the Netherlands, South Korean judges, Italianlaw professors, South African musicians, Malaysian citizen-journalists, Bulgarian filmmakers, and Taiwanese songwriters Thepassionate international licensing movement has even been em-braced by the Brazilian government, which has proclaimed itself thefirst Free Culture Nation As usage of the licenses spreads, they areeffectively becoming the default international legal structure of thesharing economy

soft-A New Type of Emergent Democracy?

Peter Suber, a leading champion of open-access scholarly ing, once explained to me why a disparate, rambunctious crowd ofcommoners spread around the globe might wish to work together

publish-to do something about their plight “People are taking back theirculture,” Peter said “People who have not been served by the cur-rent law have quietly endured it until they saw that they didn’t haveto.”20The Creative Commons has become both a symbol and a toolfor people to reclaim creativity and culture from the mass-medialeviathans The licenses and the organization have become instru-ments to advance a participatory, sharing economy and culture.How far can it go? Will it significantly affect conventional poli-tics and government? Can it bring market forces and social needsinto a more positive alignment?

This book is about the struggle to imagine this new world andpush it as far as it can go It is, in one sense, a history, but “history”suggests that the story is over and done The truth is that the com-mons movement is tremendously robust and expansive right now.The early history about free software, the public domain, and theCreative Commons is simply a necessary foundation for under-standing the propulsive logic of what is happening.

The story told in these pages is not entirely new; it has been told in fragments and through the restless lens of journalism But

it has not been told in its larger conceptual and historical sweep.That’s partly because most of its players are usually seen in isola-tion from one another, and not put in the context of the largeropen-platform revolution It’s also because the free culture move-ment, nothwithstanding its vigor, is generally eclipsed by the big-money corporate developments that are ostensibly more important.But that is precisely the problem: conventional economics does not understand the actual significance of open platforms and thecommons We need to understand what the online commons repre-sent: a powerful sociotechnological paradigm that is reorderingsome basic dynamics of creative practice, culture, politics, and every-day life

I am no bystander in this story, it must be said, but a commonerwho has grappled with the quandaries of copyright law and thepublic domain for nearly twenty years In 2001, after co-foundingPublic Knowledge, a Washington advocacy group to defend thepublic’s stake in copyright and Internet policies, I went on to writebooks on the market enclosure of myriad commons and on the ab-surd expansions of copyright and trademark law Over the course ofthis work, I discovered how a commons analysis can help us under-stand the digital revolution It can help us see that it is not just abouttechnological innovation, but about social and legal innovations.Reading Elinor Ostrom and Yochai Benkler, in particular—twoleading theorists of the commons—I came to realize that socialcommunities, and not just markets, must be recognized as powerfulvehicles for creating value I realized that many basic assumptionsabout property rights, as embedded in copyright law and neoclassi-

cal economics, fail to take account of the generative power of onlinecommunities.

How then shall we create the commons and protect it? Thatquestion lies at the core of this book and the history of the com-moners in cyberspace I am mostly interested in exploring how theCreative Commons has galvanized a variety of interrelated crusades

to build a digital republic of, by, and for the commoners One reasonwhy a small licensing project has grown into a powerful globalbrand is that, at a time of mass-media dominance and political stale-mate, free culture offers an idealistic alternative vision Something

you can do A movement in which everyone can play some useful

role The free culture movement stands for reclaiming culture bymaking it yourself and for reviving democracy by starting in yourown digital backyard CC stands for personal authenticity and di-versity in a world of stale, mass-marketed product It stands for goodfun and the joys of sharing

Put the CC logo on your blog or music CD or video, and youtoo can belong to a movement that slyly sticks it to Big Media with-out getting into an ugly brawl Don’t get mad, the CC communityseems to whisper Just affiliate with a growing virtual nation of cre-ative renegades Transcend a rigged game by migrating to a com-mons of your own making Build therefore your own world, in themanner of Henry David Thoreau—then imagine its embrace bymany others Imagine it radiating into conventional politics with arefreshing ethic of open accountability and earned rewards, a con-tempt for coercive business practices and governmental abuses, and

an insistence upon transparency, participation, and the consent ofthe governed You may be an entrepreneur who just wants to build

a profitable business, or a scientist who just wants to find better ways

to research Huntington’s disease The commons has some solutions

in these areas, too This big-tent movement is unabashedly menical

ecu-This is the vision now exploding around the world anyway Therecurring question in its earliest days, and now, remains—How can

we build it out? Can it be built out? And how far? For the

common-ers, just asking the question is halfway to answering it

Harbingers of the Sharing Economy

The rise of the sharing economy had its roots among the renegades living

on the periphery of mainstream culture At the time, they were largely visible to one another They had few ways of making common cause and

in-no shared language for even naming the forces that troubled them It wasthe 1990s, after all, a time of alluring mercantile fantasies about the limit-less possibilities of the laissez-faire “information superhighway.” Even forthose who could pierce the mystifications, the new technologies were so new, powerful, and perplexing that it was difficult to understand their fullimplications

The renegades, while sharing a vision of technological progress, weredisturbed by many on-the-ground realities A small network of hackers, forexample, was enraged to learn that software was becoming a closed, propri-etary product Companies could prohibit interested individuals from tin-kering with their own, legally purchased software On both creative andpolitical grounds, this development was odious to Richard Stallman, a bril-liant programmer who soon hatched a dream of building a protected king-dom of “free software,” the subject of chapter 1

Meanwhile, a loose community of legal scholars and tech activists wasbecoming alarmed by the antisocial, anti-democratic tendencies of copy-right law and digital technology Scholars such as Lawrence Lessig, JamesBoyle, and Hal Abelson began to realize that copyright law and softwarecode were acquiring unsuspected powers to redesign our political and so-cial order They also began to understand the ways in which the public do-main is not a wasteland, as conventional minds had long supposed, but ahighly generative zone of culture This intellectual journey is described inchapter 2

Finally, it was becoming painfully apparent to yet another phous band of renegades—artists, musicians, writers, scientists, educators,citizens—that copyright law and technological controls were artificiallyrestricting their creative freedoms With scant public attention, the music,film, and publishing industries were using their clout to protect their ar-chaic business models at the expense of innovation and the commons Thisonslaught ultimately provoked one exemplary commoner, Eric Eldred, toteam up with legal scholar Lawrence Lessig to mount an unprecedentedconstitutional challenge to copyright law, the focus of chapter 3.

amor-None of these surges of innovative dissent was well funded or larly promising For the most part, they were improvisational experimentsundertaken by public-spirited individuals determined to vindicate theirvisions for a better society With the benefit of hindsight, we can now seethat while many of these initiatives were only partially successful, each wasindispensable to the larger, later task of imagining and building a digital republic to secure basic human freedoms, the subject of Part II

particu-IN THE BEGparticu-INNparticu-ING WAS FREE SOFTWARE

Richard Stallman’s mythic struggle to protect the commons of code

set the viral spiral in motion.

The struggle to imagine and invent the software commons, whichlater set in motion a viral spiral now known as free culture, beganwith Richard Stallman, a brilliant, eccentric MIT computer pro-grammer Stallman’s history as a hacker and legal innovator has bynow become the stuff of legend As one of the first people to con-front the deep tensions between proprietary control and the publicdomain in software development, Stallman has achieved that rarepinnacle in the high-tech world, the status of celebrity geek Besideshis programming prowess, he is renowned for devising the GNUGeneral Public License, more commonly known as the GPL, an in-genious legal mechanism to protect shared software code

Stallman—or RMS, as he likes to be called—has become aniconic figure in the history of free culture in part because he showedcourageous leadership in protecting the commons well before any-one else realized that there was even a serious problem He was alone voice in the wilderness for at least ten years before the Internetbecame a mass medium, and so has earned enormous credibility as aleader on matters of free culture He has also been reviled by some as

an autocratic zealot with bad manners and strident rhetoric

It is perhaps fitting that Stallman could be mistaken for an OldTestament prophet He is a shaggy, intense, and fiercely stubbornguy On his Web site, visitors can find a gag photo of him posed asSaint IGNUcius, with his hand raised in mock genuflection and hishead encircled by a gold aureole (held in place by two admiringacoyltes) He has been known to deliver lectures barefoot, sleep onthe couch in a borrowed office for weeks at a time, and excoriateadmirers for using taboo phrases like “intellectual property” and

“copyright protection.” Stallman explains that “intellectual erty” incorrectly conflates three distinct bodies of law—copyright,patent, and trademark—and emphasizes individual property rightsover public rights “Copyright protection” is misleading, he says,

prop-because it implies a positive, necessary act of defending something

rather than an acquisitive, aggressive act of a monopolist

Stall-man considers content to be a disparaging word, better replaced by

“works of authorship.” He has even made a list of fourteen wordsthat he urges people to avoid because of their politically misleadingvalences.1

Even though Stallman frequently speaks to august academic andscientific gatherings, and meets with the heads of state in developingcountries, he resembles a defiant hippie Yet for his visionary role indeveloping free software and the free software philosophy, Stallman

is treated as if he were a head of state which, in a way, he is Hisstory has irresistible mythological resonances—the hero’s journeythrough hardship and scorn, later vindicated by triumph and ac-claim But for many, including his most ardent admirers, Stallman’sstubborn idealism can also be supremely maddening

His first encounter with the creeping ethic of proprietary trol, in the late 1970s, is an oft-told part of his story The Xerox Corporation had donated an experimental laser printer to the MITArtificial Intelligence Lab, where Stallman was then a graduate stu-dent The printer was constantly jamming, causing frustration andwasting everyone’s time Stallman wanted to devise a software fixbut he discovered that the source code was proprietary Determined

con-to find out who was responsible and force them con-to fix it, he trackeddown a computer scientist at Carnegie Mellon University who hadsupposedly written the code—but the professor refused to helphim; he had signed a nondisclosure agreement with Xerox prohibit-ing him from sharing the code

Stallman considered Xerox’s lockup of code a profound moraloffense that violated the integrity of the hacker community

(Among practitioners, hacker is a term of respect for an ingenious,

resourceful programmer, not an accusation of criminality.) Not onlydid it prevent people from fixing their own equipment and soft-

ware, the nondisclosure agreement flouted the Golden Rule It prohibited sharing with one’s neighbor The proprietary ethic wasnot just immoral, by Stallman’s lights, but a barrier to developinggreat software.

By the late 1970s, he had developed a breakthrough text editor,Emacs, in collaboration with a large community of programmers

“Everybody and his brother was writing his own collection of fined screen-editor commands, a command for everything he typi-cally liked to do,” Stallman wrote “People would pass them aroundand improve them, making them more powerful and more general.The collections of redefinitions gradually became system programs

rede-in their own right.”2Emacs was one of the first software projects todemonstrate the feasibility of large-scale software collaboration andthe deep well of innovative ideas that it could yield Emacs enabledprogrammers to add new features with great ease, and to constantlyupgrade and customize the program with the latest improvements

The Emacs experiment demonstrated that sharing and interoperability

are vital principles for a flourishing online commons

Two problems quickly emerged, however If people did notcommunicate their innovations back to the group, divergent streams

of incompatible code would produce a Tower of Babel effect ond, if the code and its derivations were not shared with everyone,the usefulness of the program would slowly decline The flow of in-novation would dissipate

Sec-To solve these problems, Stallman invented a user contract that

he called the “Emacs Commune.” It declared to all users that Emacswas “distributed on a basis of communal sharing, which means thatall improvements must be given back to me to be incorporated anddistributed.” He enforced the provisions of the contract with an iron hand As Stallman biographer Sam Williams writes, when theadministrators for the MIT Laboratory for Computer Science insti-tuted a new password system—which Stallman considered an anti-social power grab—he “initiated a software ‘strike,’ refusing to sendlab members the latest version of Emacs until they rejected the se-curity system on the lab’s computers The move did little to improveStallman’s growing reputation as an extremist, but it got the point

across: commune members were expected to speak up for basichacker values.”

Stallman was groping for a way to sustain the hacker ethic ofcommunity and sharing in the face of new types of top-down con-trol Some programmers were beginning to install code that wouldturn off access to a program unless money was paid Others werecopyrighting programs that had been developed by the community

of programmers Bill Gates, as an undergraduate at Harvard in thelate 1970s, was nearly expelled for using publicly funded labs to cre-ate commercial software He was forced to put his code into thepublic domain, whereupon he left the university to found an ob-scure Albuquerque company called Micro-Soft

Software was simply becoming too lucrative for it to remain ashared resource—an attitude that enraged Stallman He was deter-mined to preserve the integrity of what we would now call the soft-ware commons It was an immense challenge because copyright law makes no provisions for community ownership of creative workbeyond “joint authorship” among named individuals Stallmanwanted to devise a way to ensure that all the talent and innovation

created by commoners would stay in the commons The idea that an

outsider—a university administrator, software entrepreneur, or largecompany—could intrude upon a hacker community and take itswork was an appalling injustice to Stallman

Yet this was precisely what was happening to the hacker munity at MIT’s AI Lab in the early 1980s It was slowly disintegrat-ing as one programmer after another trooped off to join commercialsoftware ventures; the software itself was becoming annexed into themarketplace Software for personal computers, which was just thenappearing on the market, was sold as a proprietary product Thismeant that the source code—the deep design architecture of theprogram that operated everything—was inaccessible.3Perhaps mostdisturbing to Stallman at the time was that the leading mainframeoperating system, Unix, was locking up its source code Unix hadbeen developed by AT&T with generous federal funding, and hadbeen generally available for free within academic computing circles

com-At the time, most mainframe software was given away to encourage

buyers to purchase the computer hardware But when the ment of Justice broke up AT&T in 1984 to spur competition, it alsoenabled AT&T to enter other lines of business Naturally, the com-pany was eager to maximize its profits, so in 1985 it began to charge

Depart-a licensing fee for Unix

Stallman grieved at the disintegration of the hacker community

at the AI Lab as closed software programs inexorably became thenorm As he wrote at the time:

The people remaining at the lab were the professors, students,and non-hacker researchers, who did not know how to main-tain the system, or the hardware, or want to know Machinesbegan to break and never be fixed; sometimes they just gotthrown out Needed changes in software could not be made.The non-hackers reacted to this by turning to commercialsystems, bringing with them fascism and license agreements

I used to wander through the lab, through the rooms soempty at night where they used to be full, and think, “Oh

my poor AI lab! You are dying and I can’t save you.”

Stallman compared himself to Ishi, “the last survivor of a dead [Native American] culture And I don’t really belong in the worldanymore And in some ways I feel I ought to be dead.”

Stallman decided to leave MIT—why stay?—but with a brashplan: to develop a free software operating system that would becompatible with Unix It would be his brave, determined effort topreserve the hacker ethic He dubbed his initiative the GNU Pro-ject, with “GNU” standing for “GNU’s Not Unix”—a recursivehacker’s pun He also started, in 1985, the Free Software Foundation

to help develop GNU software projects and distribute them for free

to anyone (The foundation now occupies a fifth-floor office on anarrow commercial street in downtown Boston.)

The Emacs Commune experience had taught Stallman aboutthe limits of informal social norms in protecting the software com-mons It also revealed the difficulties of being the central coordina-tor of all code changes This time, in developing a set of software

programs for his GNU Project, Stallman came up with a betteridea—a legally enforceable license The goal was to ensure that peo-ple could have free access to all derivative works and share and reusesoftware The licensing rights were based on the rights of ownershipconferred by copyright law.

Stallman called his license the GNU General Public License, orGPL He puckishly referred to it as “copyleft,” and illustrated it with

a reverse copyright symbol (a backward c in a circle) Just as

pro-grammers pride themselves on coming up with ingenious hacks tosolve a software problem, so the GPL is regarded as a world-classhack around copyright law Copyright law has no provisions forprotecting works developed by a large community of creators.Nor does it offer a way to prevent works from being made propri-etary Indeed, that’s the point of copyright law—to create privateproperty rights

The GPL bypasses these structural limitations of copyright law

by carving out a new zone of collective ownership A work licensedunder the GPL permits users to run any program, copy it, modify it,and distribute it in any modified form The only limitation is thatany derivative work must also be licensed under the GPL This pro-

vision of the GPL means that the license is automatically applied to

any derivative work, and to any derivative of a derivative, and soon—hence its viral nature.* The GPL ensures that the value created

by a given group of commoners shall stay within the commons Toguarantee the viral power of the license, users of GPL’d works can-not modify the licensing terms No one has to pay to use a GPL’dwork—but as a condition for using it, people are legally obliged tolicense any derivative versions under the GPL In this way, a GPL’dwork is born and forever protected as “shareable.”

Version 1.0 of the GPL was first published in 1989 It was icant, writes Sam Williams, because it “demonstrated the intellec-

signif-* Stallman told me he considers it “a common calumny to compare the GNU GPL to a virus That is not only insulting (I have a virus infection in my throat right now and it is no fun), it is also inaccurate, because the GPL does not spread like a virus It spreads like a spider plant: if you cut off a piece and plant

it over here, it grows over here.”

tual similarity between legal code and software code Implicitwithin the GPL’s preamble was a profound message: instead ofviewing copyright law with suspicion, hackers should view it as yetanother system begging to be hacked.”4The GPL also served to ar-ticulate, as a matter of law, the value of collaborative work A uni-verse of code that might previously have been regarded as part of the

“public domain”—subject to free and unrestricted access—couldnow be seen in a subtly different light

A GPL’d work is not part of the public domain, because the lic domain has no rules constraining how a work may be used.Works in the public domain are open to anyone The GPL is similar,but with one very important restriction: no private appropriation isallowed Any follow-on uses must remain free for others to use (aprovision that some property rights libertarians regard as “coer-cive”) Works in the public domain, by contrast, are vulnerable toprivatization because someone need only add a smidgen of “origi-nality” to the work and she would own a copyright in the resultingwork A GPL’d work and its derivatives stay free forever—becauseanyone who tries to privatize a GPL’d work is infringing on the license

pub-For Stallman, the GPL became the symbol and tool for enactinghis distinct political vision of “freedom.” The license rests on fourkinds of freedoms for users of software (which he lists using com-puter protocols):

Freedom 0: The freedom to run the program for any pose;

pur-Freedom 1: The freedom to study how the program works,and to adapt it to your needs (Access to the source code

is a precondition for this);

Freedom 2: The freedom to redistribute copies so you canhelp your neighbor; and

Freedom 3: The freedom to improve the program, and lease your improvements to the public, so that the wholecommunity benefits (Access to the source code is a pre-condition for this.)

re-Stallman has become an evangelist for the idea of freedom ied in all the GNU programs He refuses to use any software pro-grams that are not “free,” and he has refused to allow his appearances

embod-to be Webcast if the software being used was not “free.” “If I am embod-to

be an honest advocate for free software,” said Stallman, “I can hardly

go around giving speeches, then put pressure on people to use free software I’d be undermining my own cause And if I don’t showthat I take my principles seriously, I can’t expect anybody else totake them seriously.”5

non-Stallman has no problems with people making money off ware He just wants to guarantee that a person can legally use, copy,modify, and distribute the source code There is thus an importantdistinction between software that is commercial (possibly free) andsoftware that is proprietary (never free) Stallman tries to explain thedistinction in a catchphrase that has become something of a mantra

soft-in free software circles: “free as soft-in ‘free speech,’ not as soft-in ‘free beer.’ ” The

point is that code must be freely accessible, not that it should be free

of charge (This is why “freeware” is not the same as free software.Freeware may be free of charge, but it does not necessarily make itssource code accessible.)

Eben Moglen, a professor of law at Columbia University andgeneral counsel for the Free Software Foundation since 1994, callsthe provisions of the GPL “elegant and simple They respond to theproposition that when the marginal cost of goods is zero, any non-zero cost of barbed wire is too high That’s a fact about the twenty-first century, and everybody had better get used to it Yet as youknow, there are enormous cultural enterprises profoundly commit-ted to the proposition that more and more barbed wire is necessary.And their basic strategy is to get that barbed wire paid for by thepublic everywhere.”6

The GPL truly was something new under the sun: a legally forceable tool to vouchsafe a commons of software code The li-cense is based on copyright law yet it cleverly turns copyright lawagainst itself, limiting its reach and carving out a legally protectedzone to build and protect the public domain In the larger scheme ofthings, the GPL was an outgrowth of the “gift economy” ethic that

en-has governed academic life for centuries and computer science fordecades What made the GPL different from these (abridgeable) so-cial norms was its legal enforceability.

The GPL might well have remained an interesting but arcanecuriosity of the software world but for two related developments:the rise of the Internet in the 1990s and software’s growing role ascore infrastructure in modern society As the computer and Internetrevolutions have transformed countless aspects of daily life, it has be-come evident that software is not just another product Its design ar-chitecture is seminally important to our civic freedoms anddemocratic culture Or as Lawrence Lessig famously put it in his

1999 book Code, “code is law.” Software can affect how a business

can function, how information is organized and presented, and howindividuals can think, connect with one another, and collaborate.Code invisibly structures people’s relationships, and thus serves as akind of digital constitutional order As an economic force, softwarehas become as critical as steel or transportation in previous eras: abuilding block for the basic activities of the economy, businesses,households, and personal life

Stallman’s atavistic zeal to preserve the hacker community, bodied in the GPL, did not immediately inspire others In fact, most

em-of the tech world was focused on how to convert sem-oftware into amarketable product Initially, the GPL functioned like a spore lyingdormant, waiting until a more hospitable climate could activate itsfull potential Outside of the tech world, few people knew about theGPL, or cared.* And even most techies were oblivious to the polit-ical implications of free software

Working under the banner of the Free Software Foundation,Stallman continued through the 1980s and 1990s to write a widenumber of programs needed to build a completely free operating

* The GPL is not the only software license around, of course, although it was, and remains, the most demanding in terms of protecting the commons of code Other popular open-source licenses include the MIT, BSD, and Apache licenses, but each of these permit, but do not require, that the source code of derivative works also be freely available The GPL, however, became the license used for Linux, a quirk of history that has had far-reaching implications.

system But just as Lennon’s music was better after finding ney, Stallman’s free software needed to find Linus Torvalds’s kernelfor a Unix-like operating system (A kernel is the core element of anoperating system that controls how the various applications andutilities that comprise the system will run.)

McCart-In 1991, Torvalds was a twenty-one-year-old computer sciencestudent at the University of Helsinki, in Finland Frustrated by theexpense and complexity of Unix, and its inability to work on per-sonal computers, Torvalds set out to build a Unix-like operating sys-tem on his IBM AT, which had a 33-megahertz processor and fourmegabytes of memory Torvalds released a primitive version of hisprogram to an online newsgroup and was astonished when a hun-dred hackers responded within a few months to offer suggestionsand additions Over the next few years, hundreds of additional pro-grammers joined the project, which he named “Linux” by combin-ing his first name, “Linus,” with “Unix.” The first official release ofhis program came in 1994.7

The Linux kernel, when combined with the GNU programsdeveloped by Stallman and his free software colleagues, constituted

a complete computer operating system—an astonishing and pected achievement Even wizened computer scientists couldhardly believe that something as complex as an operating systemcould be developed by thousands of strangers dispersed around theglobe, cooperating via the Internet Everyone assumed that a soft-ware program had to be organized by a fairly small group of leadersactively supervising the work of subordinates through a hierarchicalauthority system—that is, by a single corporation Yet here was avirtual community of hackers, with no payroll or corporate struc-ture, coming together in a loose, voluntary, quasi-egalitarian way, led

unex-by leaders who had earned the trust and respect of some highly ented programmers

tal-The real innovation of Linux, writes Eric S Raymond, a leadinganalyst of the technology, was “not technical, but sociological”:

Linux was rather casually hacked on by huge numbers ofvolunteers coordinating only through the Internet Quality