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[DotGNU]Whence the Public Domain?

From: Seth Johnson
Subject: [DotGNU]Whence the Public Domain?
Date: Tue, 11 Jun 2002 22:52:05 -0400

(Forwarded from Digital Bearer Settlement List,

-------- Original Message --------
Date: Mon, 10 Jun 2002 23:22:42 -0400
From: "R. A. Hettinga" <address@hidden>


Monday, June 10, 2002, 12:00 a.m. Pacific

Setting online works free doesn't please everyone

By Sarah Lai Stirland
Special to The Seattle Times

In the swirling debate over digital rights and intellectual
property, Bram Cohen ran into a surprising discovery as he
developed a new software program in the past year: It's an
uphill battle to convince people that individuals can make
their work freely available over the Internet, available for
folks to use however they want without any obligations.

Cohen, a 26-year-old independent programmer in San
Francisco, is the creator of BitTorrent, a piece of software
designed to make the transfer of large chunks of information
over the Internet more cost-efficient.

His goal is to make BitTorrent's protocol an open technical
standard for peer-to-peer file transfers - the kind of
technology behind Napster - in the same way that http
(hypertext transfer protocol) has become a standard for
transmitting information between browsers and Web servers.

To encourage this, Cohen placed as few restrictions on the
program's use as possible - that is, he placed no
restrictions, entering it instead into the public domain.
But it turns out that, initially, the concept of "public
domain" deeply troubled his prospective customers and users.
Their reaction to Cohen's apparent act of generosity was
that of a domesticated animal that's suddenly let go: They
didn't know what to do with the freedom.

"Basically, the objection was that there's not enough
legalese on there - there's been a lot of fear, uncertainty
and doubt spread by lawyers and some open-source people
saying that you can't just put something in the public
domain," Cohen said.

Cohen's experience is one small reflection of just how
politicized the issue of intellectual property on the
Internet has become on every level. The Internet, once
lauded as a frontier of freedom and a place for innovation
to flourish, has become a battleground in an emerging war
over who should own vast swaths of information and the next
good idea.

On one side are the large players in the businesses of
software, publishing, movies, cable television and music,
many of whom have made piracy a priority concern. Their
stock prices and livelihoods depend on long-established
revenue streams guarded by increasingly stringent copyright
laws, global treaties, education campaigns and
digital-rights-management technologies.

On the other are a rapidly growing number of people
including open-source advocates, consumers, civil-liberties
advocates and professors at some of the nation's top
universities. They argue that the large companies are
abusing intellectual-property laws and creating new
technologies to privatize and close off access to
information, effectively choking off innovation and
restricting progress.

'Public domain' at stake

One casualty in this war, charge intellectual-property
experts, is the public domain. It is a hard concept to
defend because not even the intellectual-property experts
can agree on what exactly is in the public domain. It is a
moving target.

Yet there is a growing sense among even sophisticated
intellectual-property practitioners such as Intel that it is
an important and valuable concept and that we may need to do
more to identify what is in it, as well as its value and
relationship to the process of innovation.

"The public domain, for the most part, has been uncharted
terrain," Pamela Samuelson, a pioneering law professor in
the field of intellectual-property law at the University of
California, Berkeley, notes in an academic paper.
"Sometimes, it seems an undifferentiated blob of unnamed
size and dimensions."

But as we increasingly become a networked, digital economy
driven by ideas, and as more information and knowledge go
digital, attempts to define the public domain could become
valuable in determining the impact of public policy on
public-information resources and the value and importance of
certain kinds of information to public interest and
innovation, says Samuelson, who is also co-director of the
Berkeley Center for Law and Technology.

Meanwhile, efforts to clarify the issues are under way.
Several research reports published in May by the New America
Foundation, a Washington, D.C., think tank, attempt to
illustrate types of information that might be in the public
domain, including collaborative efforts between Internet
users that produce online databases, open-source software
initiatives, Internet libraries and archives and
peer-to-peer file-sharing activities.

Clarifying the issues

This fall, the idea of a constitutionally guaranteed balance
among incentives to innovate, progress in science and arts,
and the public domain's contribution to that progress will
receive heightened scrutiny when a couple of high-profile
projects spearheaded by a partisan in the debate, Stanford
Law School professor Lawrence Lessig, come to fruition.

One centers on Eldred v. Ashcroft, a legal case concerning
copyright-term extensions that the Supreme Court has agreed
to hear. Lessig is representing Eric Eldred, whose Eldred
Press posts literary works on the Internet.

The other is the launch of a nonprofit corporation Creative
Commons (, an ambitious effort
dedicated to the idea that it's possible to fine-tune the
exercise of intellectual-property rights in cyberspace.

Most lawyers would say the public domain is made up of
intellectual property on which creators' exclusive rights
have expired. But the pool of works that would qualify under
this definition has evaporated over the years, say critics
of the global-intellectual-property system.

Previously, creators had to register their works with the
copyright office and renew their registrations; otherwise,
their works fell into the public domain. But changes in
copyright laws in 1976 and 1988 shifted the balance by
making copyright protection automatic. The length of some of
the terms extended to 95 years.

Reacting to these developments, as well as to what they
describe as old business models, Lessig and his colleagues
are attempting to build an online database of creative works
as a way to show how creativity can be encouraged online
without fostering piracy.

The Creative Commons project he and his colleagues unveiled
in mid-May seeks to become a clearinghouse of rights, while
providing customized licenses for movie makers, musicians
and authors seeking, as Creative Commons executive director
Molly Shaffer Van Houweling puts it: "Fame, fortune and
freedom." By that she means an ability to easily and cheaply
experiment with different ways of promoting their work and
using other peoples' work online.

The purpose of the project is to counter the mentality that
"it's a choice between property versus anarchy, that it's a
choice between the American Way versus some bizarrely
communistic system that we thought we had defeated," Lessig
said at the unveiling of the project in May.

How it works

People who are interested in using the system would simply
surf to the Creative Commons Web site and fill out a
template for the kind of license they want placed on their
work. These licenses would tag their work.

Then, people looking for a certain kind of work - a teacher
seeking illustrations for an online lesson plan, for example
- could use the Creative Commons' search engine to find work
with the appropriately generous license. The Commons also
has plans to establish an intellectual property conservancy
where creators explicitly donate their works for use in the
public domain.

For some, like Cohen, the software developer, projects such
as the Creative Commons raise more questions than they
answer because of the complexity and the many kinds of
intellectual-property rights bundled in complex creative

In his own case, Cohen met the resistance to his initial
no-strings offer by obtaining an open-source license based
on a model from Massachusetts Institute of Technology. The
only restrictions for the user are a liability disclaimer
and that the author of the code be credited if the source is

Still, as one advocate at a sister nonprofit-advocacy group
puts it, Creative Commons' effort at least provides people
with a glimpse of an alternative vision and understanding of
creativity on the Internet. It also adds a little momentum
to a traditionally fragmented but growing constituency in a
political environment heavily influenced by the
entertainment industry.

"The Creative Commons goes outside the policy process,"
notes Gigi Sohn, president of the public-interest advocacy
group Public Knowledge in Washington, D.C. "My organization
is dedicated to try and change law and policy in this area,
but that's not going to be something that happens tomorrow."

So is the Commons the be-all and end-all solution? "Of
course not," she said, "but I think it's a very, very good
place to start."

Sarah Lai Stirland is a free-lance writer who writes
frequently about public policy and technology.

Copyright © 2002 The Seattle Times Company

R. A. Hettinga <mailto: address@hidden>
The Internet Bearer Underwriting Corporation
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and
antiquity, [predicting the end of the world] has not been
found agreeable to experience." -- Edward Gibbon, 'Decline
and Fall of the Roman Empire'

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