Introduction
WITH the coming of the internet, businesses realised that they were no longer bound by space or time constraints as they had been so far, with other mediums. The internet provided highest penetrability in terms of market reach and also made it possible for businesses to cater to any demand anywhere in the world without actually owning as much as a showroom. These businesses could supply to global demands and yet at the same time, maintain their local specialities. Development in ancillary technologies like personal computers, mobile phones and laptops encouraged this new medium so much that it soon became a much bigger phenomenon than television or radio.
There were various reasons for this. Because of the basic architecture of the internet, it had the potential to acquire the roles of a library, a television set, a telephone device and even a radio. It brought together all the different forms of media and communication, and yet, presented a cheaper and more efficient model for operation. The shift from the analogue to the digital era further contributed to its widespread acceptance as a new alternative to other established media. But the true potential of the World Wide Web first became prominent after a Northeastern University student Fanning, launched a new technology for connectivity on the internet called Napster in 2001. Napster highlighted the primary model of what later came to be known as peer-to-peer technology where files and other relevant data could be transferred from one machine to another for free as long as the two machines were connected to the internet. Soon, music, movies, books and journals were being freely exchanged by users across the world through Napster and other similar P2P based programmes.
These conditions created an atmosphere of collaboration and sharing among the users such that the big media companies and record labels felt the need to urge the Congress to pass the Digital Millennium Copyright Act in 1998 which placed ultimate control over creative works in the hands of the distributors and producers. As a result, the availability of creative works in the public domain reduced much more than was desired. Out of the many people who switched to supporting movements such as the Free Software Movement, Lawrence Lessig, a Stanford Law School professor, however, realised the failings of complete anarchy as well as complete control. He witnessed that the Free Software movement failed to provide financial incentives to the creators while at the same time, the DMCA along with the Sonny Bono Copyright Term Extension Act ensured that works remained outside of the public domain for as long as possible, benefitting primarily the middlemen and distributors.
Lessig launched a set of alternative Copyright licenses under the name of Creative Commons in 2002 in an attempt to establish a middle path between the DMCA and the General Public License endorsed by the Free Software Movement. This research paper attempts to study the success of the Creative Commons licenses since their inception in 2002 by closely analysing the various conditions under which they were first launched, followed by a detailed breakdown of the four components in the new value chain of web-based businesses; the producers or the artists, the regulators or lawyers and law, the distributors or media houses, RIAA, MPAA and publishers and the consumers or users.
The thesis can be divided into two prominent sections ‘Before’ and ‘After’. The first section will take the readers through the various conditions that led to the development of the Creative Commons licenses while the second section attempts to study the interaction of the four components with these licenses.
Chapter One is an overview of the development of Intellectual Property Law predominantly in the US, and the major shifts that mark the movements towards the DMCA of 1998 owing to the introduction of networked systems and peer-to-peer file sharing capabilities.
Chapter Two tries to establish the primary online business models that came up on the internet. “Businesses like Amazon and eBay became exceedingly famous and managed to provide products to people irrespective of their geographical location. The only difference was in the medium used – internet in place of the usual mail order.” However, with new technology, came a new set of challenges like anonymity and problems of jurisdiction.
Chapter Three introduces Shawn Fanning and his ‘infamous’ programme Napster and explains the workings of peer-to-peer technology. The second half of this chapter deals with some of the other changes in technology that were taking place parallel to the P2P revolution. It also discusses the shift in the value chain which ended up establishing consumers as co-creators of creative works. “P2P had changed the traditional business-to-consumer (B2C) single-approach to multi-channel bottom-up approach.”
Chapter Four establishes the conditions under which the Congress was made to pass the Digital Millennium Copyright Act in 1998. It further introduces some of the cases that were filed by the RIAA/MPAA under the DMCA and how they were dealt with by law.
Chapter Five highlights some of the drawbacks of the DMCA with the help of examples and re-asserts that the architecture of the internet enables users to transcend geographical boundaries, rendering copyright laws ineffective.
Chapter Six marks the beginning of the second section ‘After’. It provides a detailed account of how the Creative Commons licenses were first established and how they work.
Chapter Seven directly deals with the reasons (as stated in some of the previous chapters) why Creative Commons licenses became an absolute necessity. It also talks about access control technologies such as Digital Rights Management (DRM) and the WTO agreement, Trade Related Aspects of Intellectual Property (TRIPS).
Chapter Eight divides up the new value chain and examines the importance and relevance of Creative Commons for each of the four components - the producers or the artists, the regulators or lawyers and law, the distributors or media houses, RIAA, MPAA and publishers and the consumers or users, followed by a concluding statement which highlights the findings during the course of this research.
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Chapter One
US Copyright Law and Intellectual Property
IN England, copyright existed as common law where literary works were governed under property right. However, statutory law for copyright was first introduced in early 1700s under the Statue of Anne and gave publishers the right to hold licence of their published works. Unpublished works were still made to come under common law. This system was followed for over two centuries, with gradual addition of more published works under statutory law as and when required. The Copyright Law of 1911 eventually abolished the common law practice and unified the several branches of copyright.
In United States however, Congress first passed the Copyright Act in 1790 as a Federal law, granting writers the right to publish and vend “maps, charts and books”3 for a period of 14 years which could be renewed and extended by another 14 years if the author was still alive. Copying of works of foreign writers was still permissible by law and it did not protect rights to music compositions or newspapers. In 1909, the copyright term was extended from 14 years to 28 years and then subsequently in 1976, to 75 years of the author’s life plus 50 years thereafter. The Copyright Act of 1976, for the first time, not only acknowledged the vast changes that had been brought about in the social and cultural fabric of America due to technological advancement but also established the doctrine of ‘fair use’. Under this act, copyright protection was extended to all “original works of authorship fixed in any tangible medium of expression, now known and later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”4 The Act included literary, musical, dramatic, pantomimes, choreographic, pictorial, graphical and sculptural works, motion pictures and audiovisual works and sound recordings
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Chapter Two
Disruptive Technologies and the Changes in the Playing Field
WAY back in 1886, a Minneapolis jewellery store received a shipment of gold filled watches from a jewellery store based in Chicago. The store, however, refused to accept the delivery for reasons unknown. A station agent, by the name of Richard Sears decided to buy the shipment and sell it to other station agents in return. Owing to the profit he made in doing so, Richard soon set up his own watch company in Minneapolis by the name of R.W. Sears Watch Company. By 1887, Richard moved his business to Chicago and placed an advertisement in the local newspaper for a watchmaker. Out of the responses he received, Richard hired an Indian man as Alvah C. Roebuck in 1893 and changed the name of his business to Sears, Roebuck & Co. Two years later, Sears introduced a 532- page mail order catalogue with brief descriptions of goods like shoes, wagons, garments, furniture and stoves, aimed especially at rural customers who otherwise had no means to purchase these items in their ill-equipped and sparse local shops. This business model was so well received that Sears soon set up another outlet in Dallas. By 1933, there were almost 400 outlets across America.
Some of the initial business models that showed up on the internet followed this basic concept of providing goods and services in places with no supply. Businesses like Amazon and eBay became exceedingly famous and managed to provide products to people irrespective of their geographical location. The only difference was in the medium used – Internet in place of the usual mail order. Businesses also realised that they were no longer bound by their location and that they could look at catering to markets as big as the world itself.
“Think about all the non-internet elements that enable, for instance, an Amazon purchase: FedEx, standard ISBN numbers, credit cards, relational databases, even bar codes. It took decades for these innovations to emerge and evolve. What the internet has done is allow businesses to weave together those types of improvements in a way that amplifies their power and extends their reach. In other words, the web simply unified the elements of a supply-chain revolution that had been brewing for decades.”5
The world of the Internet also presented a very different set of challenges for the law makers. It defied all established rules of behaviour as practiced in the physical world. The internet made trade possible without the buyer or the seller ever having to know each other. It opened up all existing borders between countries and turned every business into serving its customers 24 hours a day, irrespective of bank holidays or weekends. Outlets and racks were replaced with pages and links, staying in touch with friends and family became increasingly simple and cheap, airline and movie tickets could be bought in a jiffy without having to queue up, funds could be transferred from one account to another without going to the bank, and with time, the web started acquiring the role of a 24X7 library with unlimited resources available at the click of a mouse.
However, there were certain drawbacks as well. The internet did not provide any regulated system for identifying users. On the contrary, the architecture of the internet promoted anonymity and hence prevented any restrictions from being exercised in terms of what could be made available and to whom. There was no way of telling whether the user accessing a pornographic website was indeed an adult.
Since the web defies all notions of time and space, there was also no way to determine the behavioural patterns of a given set of users as established by their geographical locations or social contexts.
“Cyberspace is also unfamiliar because it permits action at a distance. Computers can be broken into from half a world away, for instance. This leads both to problems of jurisdiction (whose laws apply?) and to problems of social norms – feelings of personal responsibility fade away when the victims of the crime are never seen or met and reside thousands of miles away.”6
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Chapter Three
Peer-to-Peer and Social Networking
SHAWN Fanning, a student at Northeastern University in Boston, often struggled to find his choice of music from the then available resources. So he designed a software that, given an internet connection, linked the music libraries of all computers across the world in such a way that every user could find and transfer music files from one machine to another within minutes, for free. He called this programme Napster.
“Napster is an “ah-ha” technology: you don’t quite get its significance until you use it. The experience of opening a Napster search window, rummaging through your memories of songs you’d like to hear, and then, within a few seconds, finding and hearing those songs is extraordinary... Music exchanged on Napster is free – in the sense of costing nothing. And at any particular moment, literally thousands of songs are available.”7
Within days of floating the programme online, several thousand people had downloaded Napster and were successfully transferring MP3 files on the network. The news soon got to the Recording Industry Association of America (RIAA) and they filed a suit against Napster for Copyright infringement. The case was simple. Napster had indulged in distributing copyrighted material without prior permission or financial remuneration and the court declared Fanning guilty. Today, however, there are over 77 million users who have participated in peer-to-peer file sharing at least once in their lifetime.
But, what is peer-to-peer networking and how is it single-handedly responsible for bringing about such a dramatic change in the economics of the web? Businesses followed a very different model in the pre-internet days. The value chain was simple – the life cycle of a product started with the producer; once conceptualised, the product was sent to the manufacturer who made multiple copies of it for distribution and sale, and it was made available to the consumer by standard delivery options like retail outlets. Markets depended almost entirely on geographical locations and penetrability. When the World Wide Web was first introduced, the early adopters realised that they were no longer bound by physical boundaries and that they could work locally and yet cater to a global market. The first instances of this new emerging e-commerce were seen in online retail outlets like Amazon and eBay, as discussed in the previous chapter.
Fanning’s Napster was the first example of an online platform which blurred the line between producer/distributer and user/consumer. X had the goods Y was looking for; hence Y formed a link with X over the web, and transported what he needed from his machine. Similarly, Y had the goods that Z was looking for; so Z would do the same. And in turn, Z possibly had something that X was interested in, which X could acquire in the same way from Z. It was an atmosphere of collaboration and sharing. Most importantly, all the data being ‘exchanged’ amongst ‘peers’ was free. Nobody was required to pay any money at any stage of the value chain. This made the whole model very attractive which resulted in many users joining the community within a short period of time. Needless to mention, the database kept increasing owing to the network effect set into motion. P2P had changed the traditional business-to-consumer (B2C) single-approach to multi-channel bottom up approach.
While programmes like Napster, Kazaa, BearShare and Limewire were placing more control in the hands of the user, media companies were busy looking at establishing an online presence of their own. Like in the initial days of cable television, the atmosphere was that of controlled frenzy and uncertainty towards realising the full potential of this new medium. With the launch of compact discs (CDs), data could be stored in the new digital format which not only gave better quality output than analogue, but also provided an easy solution to space constraints. It allowed more data to be stored in the same space than the analogue format ever could. It also meant that data could be broken down into smaller parts and distributed in units. With internet, producers quickly realised that distribution of creative works was no longer dependent on physical products like CDs, cassettes, newspapers, radio or television sets and books.
Personal computers (PCs) and notebooks were also adapting to change and companies like HP, IBM, Lenovo and Apple, were launching newer advanced versions of their machines with better features almost every week. Better hardware as well as improved software gave users the option to experiment and tweak their data the way they wanted to. Ancillary gadgets like digital film cameras, even mobile phones, had the capabilities to work with software on the PC, promoting almost an entire generation of amateur film makers. People could make their own movies, edit them on their swank new Macbooks, and, sometimes even share them with friends over P2P networks. This triggered off a completely new field in the online world - platforms built entirely for users to create or write and upload their works to be shared with everyone. Websites like blogger, YouTube and Flickr came up to provide everyone an opportunity to create and express. Armed with ever advancing technology, users became co-creators, thus taking P2P networking to a whole new level.
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Chapter Four
Digital Millennium Copyright Act
THE RIAA and the MPAA, along with a few representatives from the publishing industry, anticipating the way technology was likely to be used in the future, approached the Congress to introduce what is now called the Digital Millennium Copyright Act (DMCA). They claimed that P2P networking, had hugely affected their profit margins as it encouraged people to acquire music or movie files illegally, without having to pay any money to the artists for their hard work. Artists’ remuneration, they said, was the only incentive for artists to produce more works of art, and with technologies such as P2P networking, the artists were being stripped off their incentives to create. But that was not entirely it. P2P networks, as was witnessed during the Radiohead album (In Rainbows) launch, presented the possibility for artists to surpass the middlemen and get in touch with their consumers directly. They could make music, for instance, and make it available to their fans as MP3 files online, ready to be downloaded, without having to go through a music company like Sony BMG or Universal, for packaging, manufacturing or distribution, hence rendering CDs obsolete. This seemed especially beneficial to several thousand upcoming artists who could not afford to sign contracts with the big labels, and hence distributed their music for free on P2P networks to establish a fan base. Therefore, it was not the artists who needed to worry most about their financial rewards, but the middlemen. The possibility of this direct interaction between the artists and the consumers, threatened the position of the middlemen. Convinced with the arguments of industry leaders, the Congress agreed with the need for such an act and proceeded to pass the DMCA in 1998.
Napster was the first prominent lawsuit that was examined under DMCA. Although Fanning and his business partner Sean Parker were declared guilty by the court, there were reasons why people so willingly took to similar programmes. The quality of the ‘album’ during the 90s, many users believed, had gone down. Most of them comprised two or three hit singles with several other low quality filler songs that did not make purchasing the entire album worth the money. Napster gave people the freedom to acquire only the hit singles. Later on, this model was adopted by legal music download applications like iTunes and even the new avatar of Napster.
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Chapter Five
Problems in Digital Millennium Copyright Act
UNDER Canadian Copyright Law, broadcasting television content online is not considered a copyright violation as long as the content has not been altered. Taking advantage of this provision, iCraveTV, a Canadian online establishment, started airing television content so as to bridge the gap between TV and computer users. As is the nature of the internet, users in the United States could also watch the same content online. According to US Copyright law, a company like iCraveTV needed to take permission from the various original broadcasters prior to airing their shows online. iCraveTV did not fall under US Copyright law by the virtue of being based in Canada. The company, however, tried to control the visitors to its website by asking for their phone numbers before accessing content. But there was no way of confirming if the phone numbers entered by the users were indeed their own. The law suits against iCraveTV followed soon enough. The lawyers representing the interests of the broadcasters required the company to “guarantee” that their content would not be made available to any American citizen; a tall order considering the medium.
This case, and several others like it, challenged the very essence of the World Wide Web. The reason behind the internet’s huge success was that it was a medium without geographical boundaries; that people could work locally and yet cater to a global market. But with an act like the DMCA, one country’s laws were pushing other countries to make suitable adjustments. The problem lied in the way copyright was being approached by American courts of law. European nations like France and Germany, interpret copyright law on the basis of ‘moral rights’ of the artists. In the US, the right to own a piece of work is drawn from property rights, where works are treated as fixed commodities, existing individually, by themselves. Dehong sums up this difference in his essay ‘Defending Intellectual Property’ beautifully. He says,
“The most obvious distinctions (between “Plain Old Property” and Intellectual Property) go under the rubrics of “nonexclusivity” and “nonexhaustion”. The first means that possession and use of intellectual property are not limited to one person at a time. Nonexhaustion means that the resource is not depleted by use. This depletion does not affect intellectual property because an idea exists forever.”8
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Chapter Six
Creative Commons Licenses
IN 1983, an American software programmer, Richard Stallman, launched the GNU project (GNU’s Not Unix) which is a free software, mass collaboration project. The main objective of this project was to initiate a body of free software that could exist independently without the support of big corporate giants like Apple or Microsoft. Linux, the free operating system wildly used and supported (without a stake) by IBM, was also released as part of the GNU initiative. In an effort to make this project more successful and to extend the scope of the free software movement to the masses, Stallman also wrote what is called the General Public Licence (GPL) in 1989. The GPL licences were crucial to the free software movement as they ensured the contributing programmers that their works would remain free and would not be exploited by software companies. These works, in effect, became the property of the public domain. The GPL license also required derivative works to be licensed and distributed under the same license as the original software. The one main drawback with GPL was that it was devoid of any commercial incentives.
Drawing from the GPL, and in an effort to provide a middle path between the two extreme sets of licences (All Rights Reserved and GPL), Lawrence Lessig, a Stanford Law School professor, launched a non-profit organisation Creative Commons and issued a number of copyright licences, in 2002, that allow the users to negotiate the rights they want to retain over their works while making them available to the public. Lawrence was of the opinion that creativity thrives in a society that is able to provide a rich cultural experience to learn from and to contribute to. Prior to copyright law amendments, until 1976, all works were available in the public domain unless otherwise stated by the artist with a legal notice stamp. Creative Commons, in essence, stems from that state and aims to give greater control to artists over their work.
Take the example of a Detroit based band called The White Stripes that comprises Jack White, vocalist, guitarist and song writer, and Meg White at the drums. Steve McDonald, a White Stripes fan and a member of the band called The Red Cross, wanted to add a bass guitar into the list of instruments that The White Stripes had been using. He downloaded their album called White Blood Cells, re-recorded all the music by playing the bass track on every song, christened it as ‘Red Blood Cells’, and uploaded all the songs on The Red Cross website. Steve did all of this without seeking prior permission by either the band members or their record label. However, while this project was going on, he bumped into Jack White who in turn gave him an oral permission to carry on with the work he was doing10. In an ordinary world that is governed by law, the possibility of Steve not being sued for copyright violation is unheard of. With Creative Commons, however, the entire legal process can be made as easy as The White Stripes story.
How CC Licenses Work?
CC licences are a set of rights that let artists choose how they’d like to distribute their works. For instance, take the example of Amy, who is an independent singer/songwriter, and wishes to share her music with her fans and also wants to be protected. She usually uses her website to upload her music and also uses it as a platform for her fans to get familiar with her works. By filling up a short questionnaire about what she expects from her CC license, she can choose her rights (attribution, commercial use, derivatives and modifications) and design her own license to suit her needs. This way, Amy can ensure that the ultimate control still lies with her but that she is actively engaging and encouraging her fans to use her music like the way they want to. Lessig remarks,
“The licenses don't put anything into the public domain. They authorize certain free uses, while reserving rights for other uses. The model doesn't enable more rights-violating uses than are possible anyway -- even if someone doesn't authorize a free use, plenty of people already use work for free. Moral rights would control how one made a derivative use of a work, and most of the problem here isn't with people making unauthorized derivatives. I think copyright should always be about the interests of the artists.”11
Creators are made to choose from a set of conditions they’d like their works to operate under.
Review Conditions 12
Creators choose a set of conditions they wish to apply to their work.
Attribution. You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request.
Noncommercial. You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only.
No Derivative Works. You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.
Share Alike. You allow others to distribute derivative works only under a license identical to the license that governs your work.
Select License
Followed by selecting the license that indicates how others may use their creative work.
Attribution (by)13
This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.
Attribution Share Alike (by-sa)
This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.
Attribution No Derivatives (by-nd)
This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
Attribution Non-commercial (by-nc)
This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.
Attribution Non-commercial No Derivatives (by-nc-nd)
This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.
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Chapter Seven
Why the need for Creative Commons?
AS mentioned in Chapter 3, due to the change brought about by technology, increasingly more people were logging on to the web, interacting, exchanging data, listening to music, and even creating some in the process. As the lines between creator and user began to blur, the law could no longer distinguish between the two either. Technology had also placed a great amount of control in the hands of ordinary citizens. They could now copy vast amounts of data from off the net, transfer software from one machine to another, download and edit and ‘remix’ songs as per their liking. Most people owned more than one device for consuming the media they had acquired legally. But they were bound by law, and in some cases, even by technology, to access the same content by multiple devices.
Device manufacturers like Apple, Sony and Microsoft, publishers and producers, entered into partnerships and switched to an access control technology called Digital Rights Management (DRM). Apple for instance, uses its own digital watermarking method called FairPlay. Given the plummeting profit margins for middlemen in the media business, DRM was nothing but an attempt to lock in customers. In all of this, the consumers were the ones running headlong into Intellectual Property.
“Is it permissible to reproduce an audio CD to have a copy in the car as well as at home? What if only one of them is ever in use at once? The issue here is not what the answers are; it is that everyday life has been intruded on by what can be subtle questions of Intellectual Property law.”14
The need for Creative Commons license also emerged from the fact that copyright had become more about safeguarding the interests of the middlemen. It is an attempt to make law easier for the artists as well as for the consumers.
Let’s revisit the Canada-based iCraveTV example. One of the reasons the website shut down was because it had failed to ensure that its content was not accessed by US citizens. Copyright law, across nations, had been made based on geographical boundaries – one nation’s creative products were its own to use commercially, unless otherwise stated in the terms of a legal contract. The architecture of the internet was designed keeping in mind that the virtual world should be devoid of physical boundaries. When commercial creative content started being disseminated online, this clash between technology and law became very apparent. The World Trade Organisation (WTO) issued an international agreement called Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994 in an attempt to fight digital product piracy and to establish a common body governing Intellectual Property disputes among member nations. TRIPS also played a significant role in reducing rampant piracy in nations like Russia, India and China.
Terry Flew wrote, in the Media and Arts Law Review in December 2005, that although more than a hundred nations signed the agreement as part of their entry into the WTO, TRIPS was merely an agenda driven by the United States which, “as the world’s leading producer and exporter of commercial creative products, sought strong protection of Intellectual Property on a global scale...”15 to fight piracy. Regulating Intellectual Property law at a global scale was made to look like yet another attempt to keep the profit margins soaring, at the cost of developing nations. Recently, the G8 member nations, led by United States, passed the new Anti Counterfeiting Trade Agreement (ACTA) which gives Custom Officers, at a country’s point of entry, the right to peer inside a traveller’s iPod to detect illegal file possession. The real reason behind high rates of piracy in these nations was, however, once again, blatantly neglected. Siva Vaidhyanathan, in his book The Anarchist in the Library, writes,
“The rhetoric surrounding these issues is troublesome enough in parts of the world with a rich tradition of respect for copyright law and plenty of disposable cash for legitimate products. But it assumes an absurd tone in places where the vast majority of middle class people cannot afford the cultural products they need to be citizens of global culture or players in the global economy. Business people are not the only consumers of software. Indian education might have to give up dreams of computer literacy for its students if it had to pay market prices for software.”16
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Chapter Eight
Who Needs it and Who Doesn't
The Artists
IN an age where the creative industries offer a handsome contribution towards the economy of the nation, it is the artist who needs as many privileges as the State can provide in terms of protecting his creative endeavours. However, although technology has been developing at a tremendous rate, offering a much wider platform to artists to showcase and promote their work, law has failed to keep pace with the demands of the market. With the implementation of the Digital Millennium Copyright Act, and the cases that followed soon after, copyright law, that had so far represented the welfare of the artists, began reflecting interests of middlemen and media conglomerates. Congress, it seemed, was being subtly controlled by the MPAA, RIAA and a few publishers. Technology, which could have played a vital role in extending this new medium of the web, was either being used against it, like in the case of Digital Rights Management, or being used in various ways by consumers, to attain content illegally.
Writer and Editor Chris Anderson (Wired) once remarked,
“The big challenge that most authors face isn’t online piracy. It’s not people out there diabolically copying their works and distributing them for free. In fact, most authors suffer from a different problem entirely – no one has ever heard of them!”
The more mainstream artists, those who had signed big contracts with record labels like Sony BMG or Virgin Music, were not as deeply affected by piracy as some of the lesser known musicians or those who were striving to create their fan base. As Anderson rightly pointed out, most artists or authors suffer a life of obscurity. Creative Commons licenses solved that first hurdle for them. So far, these obscure artists had distributed their works on several peer-to-peer file sharing networks for free, with the hope that someday enough people would have come across their music to give them a mainstream status. Creative Commons licenses enabled these artists to also get credit and recognition for the work they had created. By offering a flexible set of rights, these licenses handed the control right back into the artists’ hands.
It is easy to believe that CC licenses were created on the premise that consumers would refrain from using these freely available works illegally. But the Creative Commons model does not enable more rights-violating uses than are possible anyway. Take the case of an Ohio (USA) based Alternate Rock/Metal band called Nine Inch Nails (NIN). Their official website, www.nin.com currently sports an exclusive ‘remix’ section where the band members promote and celebrate the remix culture, encouraging their fans to download their music, remix it, upload it back on to the website so others can listen to it and further make changes to it. Their music has been licensed under Creative Commons and is available as free downloads from their website. They also provide downloadable tools for remixing their tracks. But this is not how they started.
NIN started out as an ordinary band and after struggling for a first few years, Trent Reznor, the singer-songwriter, signed a deal with TVT Records in the late 80s. However, he soon began recording music secretly under various pseudonyms so as to maintain minimal interference from his record company. Reznor also experimented a lot with some of his album releases and tours by constantly surprising his fans. Hidden clues on merchandise that led his fans to online gaming websites, USB drives with unreleased NIN songs at several concert venues, and eventually, the release of a few tracks from the album Year Zero as audio files that could be downloaded and remixed; all of this contributed to the band’s resounding success. Reznor had been known to set his own rules when it came to music distribution or even album art and packaging.
Ghost I-IV, the band’s seventh album (March 2008), was released online under the Creative Commons license, prior to the release of physical copies. All tracks were available for free downloads and fans had been granted the right to remix and distribute the music further under a CC BY-NC-SA license (Creative Commons by Non-Commercial Share-Alike) as long as they attributed the work to the original artist and refrained from using it for commercial purposes. The band also released 2500 copies of a $300 Ultra Deluxe Limited Edition of the album on vinyl and made approximately $1.6 million within the first two days itself. Consumers also had the choice of buying the entire album for $5 in a variety of different packages. The money that NIN made by adopting this model far exceeded any traditional CD sale model ever known. Add to this the profits NIN made by selling tour tickets and various other merchandise based around the album. Reznor took the concept of sharing and co-creating to new heights by soon announcing the ‘Ghost Film Festival’ on the video-sharing website, YouTube. The band’s YouTube page thus read,
“To expand the idea of the ‘Ghosts’ project, Nine Inch Nails is inviting anyone and everyone to create visuals to accompany the album’s music. In a few months, we’ll be gathering the entries we feel are particularly exceptional and highlighting them. There are no rules to this – be as creative as you like. Create a music video, or a short film, or something completely abstract. Use only one track from the album, or use multiple tracks.”17
Soon Reznor also announced the release of another album, The Slip, under the same Creative Commons license. There isn’t much evidence that supports that NIN managed to make so much profit entirely because of the CC license under which the album was released. However, it does seem like the strategy to release the tracks under Creative Commons, brought the band a lot of world-wide press coverage and media attention. The people who stood up and took notice were not only NIN fans, but ordinary consumers who have used peer-to-peer file sharing software at least once in their lifetime. The move to release the actual content for free surprisingly brought NIN much more profit than traditional CD sales!
As a concept, this move is pretty similar to the trends being observed in the development of the Internet. Some of the biggest and most profitable websites offer their services for free, but at the same time, make huge profits by providing their customers with high levels of customisation to cater to their individual needs. It is a ‘free-for-all’ market, but if a customer is willing to pay, he/she has the option to tweak the web to cater exclusively to his/her needs. In a world full of collaboration, remixing and mash ups, seeking personalisation and authenticity has become the most desirable commodity. It is a similar model as has been adopted by online retail outlets like Amazon and eBay. Social networking websites like Facebook and MySpace also offer high degrees of personalisation in the services they offer.
The Law Makers and Law
An Air Force Technical Sergeant, Mark Davenport, had been employed as the manager of the Air Force Manpower Data System (MDS) at Blueport. After having used the MDS, Davenport had come to believe that it had several loop holes, and that an upgrade to the Manpower Data System (MDS) software would iron out the creases. Owing to the inefficiency of the system, Davenport requested he be trained in computer programming so that he could improve upon the existing software. After the Air Force rejected his request, Davenport started training himself the skills needed to write the programme. He learnt programming on his own time, using his own resources and began writing the programme on his home machine. He designed a new programme called the AUMD, which was to be used with the MDS. After having tested the beta versions, Davenport started distributing his programme to his colleagues, and soon had his name recommended for a promotion. However, this was followed by demands that he turn over the code of his software to United States Air Force (USAF).
Davenport rightly refused the USAF’s authority to ask him to turn over the programme after having put in so much effort into writing the code. USAF further threatened to demote him and also hinted at a pay cut. As a result, Mark signed off all his rights to Blueport, the original makers of the MDS software, which in turn tried to negotiate a license with USAF. The USAF approached the Science Applications International Corporation (SAIC) and had the source code modified so as to extend the expiry and enable their use of the software. On seeing this, Blueport filed for copyright infringement and violation of the DMCA. It seemed like a clear case of circumventing the Blueport software. However, the Government refused to waiver its sovereign immunity for copyright infringement, as stated in Section 1498(b) of title 28, United States Code. “The Court of Federal Claims (CFC) dismissed Blueport’s claims for lack of jurisdiction on the ground that the Government has not waived sovereign immunity for any of Blueport’s claims.”18
Copyright law in the United States has been grappling with one bizarre case after another. On one hand, acts like the Sonny Bono Copyright Extension Act prevent works from entering the public domain, making them inaccessible even long after the death of the original creator, and on the other, the government retains its rights to infringe upon copyright and not abide by the laws that it makes for its citizens. There is a clear dichotomy between what is desirable as law and what the government wants its people to abide by. And the difference lies in the motives behind passing the DMCA. As long as the law helps the media conglomerates increase their profit margins, and doesn’t come in the way of the government, ordinary citizens or even artists/creators for that matter, have no say in the decisions that are made for them on their behalf. In a tussle between the common man and the RIAA/MPAA, it’s the latter that wins. And in a case involving a software manufacturing giant and the government, it’s the government that prevails.
Distributors, Media Houses and Publishers
It is anybody’s guess that distributors, big media houses, RIAA, MPAA and publishers have been most affected, or are likely to be, by the Creative Commons licenses. By the turn of the century, the trend of buying entire albums and CDs had given way to a new emerging business model, that of downloading music, one track at a time, from online music stores like Apple’s iTunes and Rhapsody. Prior to the P2P revolution, most record labels made money by selling CDs, but the P2P model challenged that approach, eventually rendering it obsolete. The plummeting profits, and the change in the playing field led the record labels to blame illegal downloads and piracy. Of course piracy is a problem, but there are no studies to support that it is the only rationale that explains the dwindling sales in the CD market. Their move towards insisting that the Congress pass the DMCA is reflective of their approach towards technology. For record labels and other media middlemen, adapting to this new business model has proven to be a huge challenge – something they are still struggling to come to terms with.
For consumers, however, buying physical copies of music or movies, or even books, is not convenient anymore. An Apple iPod is portable, but a 5.1 surround sound home theatre system is not. Also, most music systems manufactured today are compatible with the PC. Hence consumers have the choice to plug in their laptops with these systems and still access their media files. The home computer has become everyman’s one-stop-shop for entertainment. That said, the CD/DVD market has witnessed its own share of evolution. Today people prefer buying limited edition copies of CDs or DVDs. They enjoy the exclusivity of a limited edition set over the commonality of a regular CD.
Distributors and manufacturers are also gradually moving into the live show arena. The number of people attending live concerts is far greater an attraction for artists as well as their record labels. Profit that was earlier coming in from the sale of CDs, is now being earned from the sale of tickets and merchandise. Artists, too, are becoming aware of this new trend in the consumption of creative content. Take the example of Madonna, for instance. In October 2008, Madonna announced her move from long-time record label Warner Music, to concert promoters Live Nation. She said,
“The paradigm in the music business has shifted and as an artist and a business woman, I have to move with that shift. For the first time in my career, the way that my music can reach my fans is unlimited. I’ve never wanted to think in a limited way and with this new partnership, the possibilities are endless.”19
This, in a nutshell, sums up the acute crisis that the middlemen in the music and movie business face as of today. The deal covered future music and music related businesses, albums, touring, merchandising, related television shows and movies, fan clubs, websites, related sponsorship agreements and DVDs.
It is no secret that Napster paved the way for a lot of illegal peer-to-peer file sharing networks. And the Recording Industry has left no opportunity to cry foul about how piracy is ruining the financial incentive for artists to create. Contrary to what they might say, the recent court cases tell a different story. There have been at least 20,000 copyright infringement cases registered by the RIAA in the recent past almost all of which have been followed up by out-of-court settlements. The only P2P copyright infringement case to go on trial was that of Jammie Thomas, a resident of Minnesota and a single mother of two kids. She had been accused of sharing 24 songs on Kazaa. Although there was no real proof of Thomas transferring or ‘sharing’ these files on Kazaa, RIAA’s attorney Timothy Reynolds said in one of her interviews with the press, “Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online – and would solely benefit those who seek to freeload off plaintiff's investment.” The jury later passed the verdict that Thomas must pay $9,250 for each of the 24 music files she attempted to share online, making the grand total of $222,000 in penalty. In yet another case involving Tanner Hills from Louisiana, MPAA concluded that each of the pirated DVDs found in his apartment cost $19 each. Over a year ago, however, 200,000 pirated DVDs that had been seized in Australia were worth $83 each!
It is one thing to claim that MPAA and RIAA have suffered huge losses due to rampant piracy and P2P networking, but quite another to not even have a clear estimate as to how much these illicit CDs and DVDs cost. How is it that on one hand they demand such high rates in damages and on the other, claim that CD prices have gone down by 9-11% in the recent years?
In the long term, given that the RIAA and MPAA continue their search for marking ‘illicit content’ online, these cases may even have a negative impact on the way we listen to music or watch movies. The current trends that are being favoured by music enthusiasts across the world are that of participation and interactivity, be it in terms of co-creating content online or during artists’ live show performances. And part of what the CC licenses achieve, is to continue this spirit of engagement and two-way communication between the artist and the people who appreciate his/her work, without the interference of middlemen.
The Consumers
A lot of what happens in the creative industries is directly dependent on the society they thrive in. An artist’s work is not independent of his surroundings and more often than not, a songwriter draws inspiration from his life or from the people around him. Our movies reflect the society we live in, its unique characteristics like the language we use, the customs and traditions we follow and the set of beliefs we pass on from one generation to another. Art sometimes, also critiques the society it is born out of – the government, its policies, the systems we follow and the lifestyles we lead. In turn, artists, contribute towards the society, by sharing their creations, by representing the mundane in a form which is aesthetically appealing or entertaining. Art, in a sense, is a reflection of the society it comes from. As is the case with patents, if all the art and the creative content ever produced, were to be put away in a closet, hidden from the world to consume, how then would the symbiotic relationship between art and society flourish?
Every society is a combination of people from all walks of life, a culmination of various different cultures and preferences. Creative works draw from these different aspects of our world and give new meaning to the world around them by adding their own perspective. Today, the creative industries also represent sectors such as advertising, fashion, architecture, software development and virtual games. Take the case of architecture and design. It is practically impossible to imagine how architects would come up with new and improved designs if they were not allowed to study existing buildings or the materials used in their construction. Similarly, in the case of software development, for students to become good software developers, should it not be deemed fit to study the code for all available programmes as developed by Microsoft or Apple? Creative Commons licenses seem to have long term benefits for a society. They enable the free exchange of ideas, between the society and the artist, and ensure the development of a bigger, greater knowledge pool, available for all.
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Conclusion
ERIC Raymond, in his book ‘The Cathedral and the Bazaar, said,
“Users are wonderful things to have, and not just because they demonstrate that you're serving a need, that you've done something right. Properly cultivated, they can become co-developers. Another strength of the Unix tradition, one that Linux pushes to a happy extreme, is that a lot of users are hackers too. Because source code is available, they can be effective hackers. This can be tremendously useful for shortening debugging time. Given a bit of encouragement, your users will diagnose problems, suggest fixes, and help improve the code far more quickly than you could unaided. Treating your users as co-developers is your least-hassle route to rapid code improvement and effective debugging.”20
The popularity and success of the Linux operating systems speaks volumes of the quality of products that can be achieved in an open source format. Lessig takes this theory a step further. He says, “Society benefits from resources that are free; but unless some system of control is implemented for resources that must be created, or for resources once created, whose use is rivalrous, then no benefit will be received. The key is to balance the free against the controlled, so that the benefits of each can be achieved.”21 This is exactly what the Creative Commons licenses strive to accomplish. By making content available to users for free, these licenses ensure that the society, by and large, benefits from these products. At the same time, by placing the ultimate control in the hands of the creator, CC licenses also ensure that these resources are constantly produced and not overused.
This seems like a fairly decent model to follow provided the intent was to share works. With time, certain websites started adopting the Creative Commons licenses as part of their business strategy. The most famous example of this is Flickr, Yahoo’s photo-sharing website. Flickr adopted these licenses in an attempt to provide a more robust, flexible and hassle-free service to its users. The use of CC on the website was an added benefit for the users - a comfort rather than a need. The website, however, did not depend on this licensing model for its sustenance. A number of other websites have, since then, adopted the Creative Commons license as part of their strategy in an attempt to appeal to a wider base of customers. But CC is yet to establish itself as a predominant model for commercial purposes. Although Creative Commons licenses manage to walk the fine line between complete anarchy and complete control, they have often been criticised on the issue of being unable to achieve enough commercial incentives for authors to license their work under the CC Share-Alike regime. If, say for instance, Edward makes his music available for free, who will want to pay for his songs? And in the long run, how would he live off his music?
In 2006, the team at CC came up with the concept of CC+ (Creative Commons Plus). Simply put, these are the usual CC licenses combined with a few extra rights that are not available under the current set of CC license conditions. With normal CC licenses, Edward could share his music, prohibit commercial uses of it (unless otherwise permitted by him) and also restrain people from making derivative copies. With CC+, Edward can still use the CC BY-NC-ND model for his music, and at the same time, indicate people to a commercial website where they can choose to pay to acquire more rights than those granted already. Some of the other cases for CC+ as per the Creative Commons website include:
§ A non-commercial license along with a separate agreement with a third party for brokering commercial rights
§ Offering private agreements with parties that need them
§ Make derivative works available under Share-Alike but also make provision for those parties who do not want to further make their derived works available under the same license.
As has been discussed in this paper earlier, the nature and scope of the internet as an evolving medium, still needs to be understood in its full capacity. Technology, that aides the further growth and expansion of the internet as well as that which regulates it, is developing exponentially at the same time. Law meanwhile, develops and adapts to changes at a much slower pace than technology. It also changes only after having established enough cases that justify its need to change or amend. These differences in architecture between law and technology, are evident in the constant clashes between the two. In the past decade or so, several economic models have been set up so as to utilize the potential of internet as a medium. The Digital Millennium Copyright Act of 1998 was one of the first attempts at regularising the use of the World Wide Web. However, problems with DMCA began to emerge in the years that followed. The Act’s overtly restrictive nature often safeguarded the interests of the middlemen. The other option was the more open system of the General Public License, but needless to say, it was not based on a sound economic model. Hence, it lacked the power to provide stable financial incentives to artists.
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References
- Lessig, L. The Future of Ideas, Page xvi 2002 Vintage Books, New York
- Vaidhyanathan, S. The Anarchist in the Library, Page xii 2005 Basic Books, Cambridge
- Copyright Act of 1790
- Copyright Act of 1976
- Anderson, C. The Long Tail, Page 41 2006 Random House, London
- The Digital Dilemma, National Academy of Sciences, Page 49 2000 National Academy Press, Washington DC
- Lessig, L. The Future of Ideas, Page 130 2002 Vintage Books, New York
- DeLong, James V, Copyright Exceptions: The Digital Impact. Page 27 2005 Cambridge University Press, UK
- Lessig, L. The Future of Ideas, Page 252 2002 Vintage Books, New York
- Lecture Some Rights Reserved, Stanford Humanities Centre, Glenn Brown (Creative Commons)2004
- Lawrence Lessig, In Private Conversation
- www.creativecommons.org
- www.creativecommons.org
- The Digital Dilemma, National Academy of Sciences, Page 45 2000 National Academy Press, Washington DC
- Flew, T. Creative Commons and the Creative Industries, Media and Arts Law Review, Vol 10, No 4.
- Vaidhyanathan, S. The Anarchist in the Library, Page 97 2005 Basic Books, Cambridge
- http://www.youtube.com/group/ninghosts
- United States Court of Appeals for the Federal Circuit, Blueport Co. V. United States
- http://blogs.guardian.co.uk/music/2007/10/will_madonnas_live_nation_triu.html
- http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ar01s03.html
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Bibliography
Books
- Alexander, B. ‘The Digital Millennium Copyright Act: Licensing the Commons’ (2008) http://www.mindjack.com/feature/dmca.html
- Anderson, C. The Long Tail, 2006 Random House, London
- Barlow, John P. ‘Intellectual Property, Information Age’ (2003) Copy Fights: The Future of Intellectual Property in the Information Age. USA: Library of Congress
- DeLong, James V, Copyright Exceptions: The Digital Impact. 2005 Cambridge University Press, UK
- Flew, T. Creative Commons and the Creative Industries, Media and Arts Law Review, Vol 10, No 4.
- Lawrence Lessig, In Private Conversation
- Lecture Some Rights Reserved, Stanford Humanities Centre, Glenn Brown (Creative Commons)2004
- Lessig, L. The Future of Ideas, 2002 Vintage Books, New York
- Litman, J. (2001). Digital Copyright. New York: Prometheus Books
- Stokes, S. (2005) Digital Copyright: Law and Practice. Great Britain: Page Bros
- Tapscott, D and Williams, Anthony D. Wikinomics 2007 Penguin Group New York
- The Digital Dilemma, National Academy of Sciences, 2000 National Academy Press, Washington DC
- United States Court of Appeals for the Federal Circuit, Blueport Co. V. United States
- Vaidhyanathan, S. The Anarchist in the Library, 2005 Basic Books, Cambridge
Websites, News Articles and Blogs
2. http://www.youtube.com/group/ninghosts
3. http://blogs.guardian.co.uk/music/2007/10/will_madonnas_live_nation_triu.html
4. http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ar01s03.html
5. http://www.boingboing.net/2008/03/03/nine-inch-nails-goes.html
6. http://arstechnica.com/news.ars/post/20080804-air-force-cracks-software-carpet-bombs-dmca.html
8. http://www.businessweek.com/globalbiz/content/aug2008/gb20080815_901512.htm?campaign_id=rss_daily
9. http://blog.wired.com/27bstroke6/2008/08/file-sharer-set.html
10. http://recordingindustryvspeople.blogspot.com/
11. http://www.thestandard.com/news/2008/08/20/electronic-arts-third-domino-fall-music-related-sites
12. http://blog.wired.com/27bstroke6/2008/08/judge-hints-at.html
13. http://blog.wired.com/music/2008/06/rhapsody-to-sel.html
14. http://news.bbc.co.uk/1/hi/entertainment/7047969.stm
15. http://blog.wired.com/music/2008/01/major-labels-al.html
16. http://www.newyorker.com/talk/financial/2008/08/11/080811ta_talk_surowieck
