 So welcome! Delighted to be here on such an auspicious occasion, both a chance to look back at Creative Commons and to celebrate future accomplishments and even take on some tough future issues. My name is Jonathan Zitron. I teach here at the Law School and at the Berkman Center and I'm pleased to be moderating today's panel. But before we jump into that, I thought I would turn it over to our Dean, Elena Kagan, for a special announcement for those of you who have been living under a rock. Dean Kagan. Thank you, Jonathan. How many of you have been living under a rock? All right. First off, welcome to Harvard Law School. It's great to see you here. We're really pleased to host this panel, which is going to be talking about a movement that's been of really great importance over the last however many years. How many years has it been, Larry? You should know, Larry, because you started it and you started it here in this very building. This building, Pound Hall, used to be the home of the Berkman Center. The Berkman Center since has outgrown this building and is on to newer and more luxurious accommodations. But this was the home of the Berkman Center. This was the home of Larry Lessig and this was the home of Larry Lessig's brainchild, Creative Commons. And the announcement, the announcement that Jonathan said I was going to make is simply this, that we are delighted, that we are thrilled, that we are ecstatic, that Larry Lessig is coming home, coming home to Harvard Law School. Thank you, Larry. There are very, very few people in the world as brilliant as Larry Lessig. There are very, very few people in the world as visionary as Larry Lessig. There are very, very few people in the world as influential as Larry Lessig. And there are very, very few people in the world as effective as Larry Lessig. And there is no one in the world as brilliant and visionary and influential and effective as Larry Lessig. And that's what makes Larry Larry. Larry started this incredible movement and now he's ready to start another movement, which I guess he won't be talking about today, but he is coming to Harvard partly or even largely in order to head up something called the Edmunds-Safra Foundation Center for Ethics, in which he is going to tackle some of the biggest issues of our society, issues of governance, of why it is that institutions that count on people's trust, in fact lose people's trust on money and the role that money plays in important institutions in our society and of corruption. And if anybody can give a fresh spin to those issues, if anybody can make us look at those issues in a new and different way, if anybody can make us take seriously those issues and if anybody can persuade us to solve those issues, it is indeed Larry Lessig and I look forward so, so much to his being here and to the incredibly important work that I know he's going to do. Thank you, Larry. Thank you again, everybody on the panel for coming here and to Harvard Law School tonight and everybody in the room. Creative Commons is such an important organization, movement, it's hard to know exactly what label to give to it except that you do really significant things and are doing really significant things in the world and will continue to do so. Thank you very much. So again, Larry, we're just so delighted you're here and in a completely unrelated piece of news, an ice storm just knocked out power to half of Massachusetts and New Hampshire, so perhaps you'll be staying even longer, even during this visit. The load tonight is 15 degrees, but again, we're delighted you're coming from San Francisco, so just wanted to say thanks. So we're going to start on the panel, one administrative note, which is we're being webcast. Everything we say will be recorded and will last forever online and will probably be remixed and remashed to say things you didn't intend to say, which means you might as well say what you want to say because you can just plausibly deny it later. Now a non-administrative announcement. To introduce tonight's event, I'm pleased now to turn the floor over to somebody that perhaps gives Larry a run for his money in the visionary category. This is somebody who was talking about a commons in cyberspace while we were still trying to figure out what cyberspace was, and somebody who has implored us from the beginning that cyberspace is ours to build, that it's an invitation to actually stop just talking about stuff or killing trees and producing paper, but also to actually build. And to give us a few words to open up our evening, I now turn it over to my great colleague, friend and mentor, Charlie Nessen. Well it's a pleasure to follow my fabulous dean with this fabulous announcement and to say a word here about what I think of as the essential idea. Creative commons. You can think of it as a structure of licenses. You can think of it as a lawyer's approach to the problem of individuals actually claiming their own power to say what they want and how their product should be treated. But I'd like to focus you on a broader notion that's embodied just in the word commons. Larry argued, Eldred, in the Supreme Court of the United States, 1998, the thing that was extraordinary, and that as I look back on it, wearing this Birkman a 10 jacket and thinking back to the beginnings when Larry was here, the thing that's extraordinary was that the court at that time and the country around it really had no idea what the public domain was. It was not a meaningful concept. There was no sense of a citizenry of the net. There was no idea that there was a digital nation, a growing constituency that was taking shape in the country. Now we're at a different place. We just elected a magnificent president. I say we, we the people, we the people of the net, we the commons. The commons is us. The thing that was most exciting about Obama's vision was his vision of change. And his expression of that challenge is to turn it back to us. We are the change. You are the change. We are the creative commons. That was Larry's idea. He made it real. And I'm just so pleased that you're back here and so eager to hear what this panel has to offer in terms of ideas about the commons and futures of the commons. So pleased to have these other guests here with us. So thank you all for joining us and let's go. John, back to you. He's already looking skeptical. So I thought we'd be best if we took this narratively. There's a lot of people in the room that know a lot about creative commons that, as Charlie says, are creative commons. So we're hoping to get some good dirt, some good gossip, some good war stories from the past, and then turn towards what the challenges are in the future. And I guess let's start with you, Molly. You were there at the very, very, very beginning. Is that right? Not in the spring of 2001, which I did not attend. And then when I started as the first staff person for Creative Commons, my first job was to try to recreate what was said at that meeting. So I could figure out what this Creative Commons thing was supposed to be about. So I was not there quite at the beginning. Aha. Who wants to fess up to actually having been there at the beginning? So let me start by fessing up, but making something very clear. My dean's claims notwithstanding. Creative Commons was born as a commons in the sense that there were a group of people who got together and started talking about how to solve obvious problems. Conversation started, I think it actually started first at Duke, right? It was at a Duke conference that we sat down your conference on the public domain. And a conversation began there and migrated here. And then we started to build an institution here in the spirit of Charlie's, just go out and build it. So Jamie and Hal were at the core of that original conception. Well, see, now that you mention it, my recollection is that you've had this obsession with the letters CC for a really long time. And that you sort of wanted backrenims to fill them in. So the first backrenim for CC was counter copyright. And you deployed that in the Eldred case to indicate that people, instead of putting the C in a circle, should subversively put a CC in a circle, to mean counter copyright. You can have this for free, take that, man. Was that? Yeah, I have no recollection of that. Really? I think Brewster Care will back me up on this. I have an Eldred.CC t-shirt. Okay, right. It came out of the Eldred case, right? The challenge to the Sunny Bono case. I don't know how I've just gotten to the cross-examination about it. Even in truth! You can't handle the circle. But isn't that what happened? There was counter copyright. There was copyrights commons, which still survives. Now copyrights commons, this was one of the plaintiffs in the Eldred case. An unincorporated association under Washington State Apple growers. There was two hapless students that we corralled to be the plaintiffs in the case. Before you confess to a crime under legal ethics. Actually, I'm just trying to pick it up to your news center, Larry. We didn't corral. There were people that had a genuine interest, Jonathan. My recollection has been refreshed. So those students had a genuine interest, and they came to us and said, Why did they bring the Constitutional Challenge? That is what they wanted from you, right? Yes. So they were one of the plaintiffs. Copyrights commons. And then there was the counter copyright idea. And was there a gap in between that and creative commons? Well, as I remember it, after Eldred, Hal and... Hal Abelson. Excuse me, who's on the CC board. And I suppose we should say you are James Boyle. And Eric Eldred, we're having a conversation with Larry where they said, well, what could we do to do things that are in the spirit of Eldred with the law, rather than by striking the law down. And so Larry organized a meeting here. It was actually not in this building. It was the next door building over, in which a group of very confused MBA students were brought in to consult. And their first thing was... Always a path to success? Well, it actually was, because everything they said, we went, oh no, we don't want that at all. So actually, they pointed out success by laying out a business plan, which would have led inevitably to failure. So their goal was to make sure that we would prohibit sharing by anyone else than the people who came through us. And that we would own sharing. And license it cheaply. Do you remember this? Of course. That CC crappy concept. And they had a flip. It was wonderful. It was really, it was an enlightening meeting. You want to tell us anything more about that meeting? Just keep going. Because I recall at one point, it's true that I guess the idea behind Creative Commons has morphed a number of times. It was the real dirt. OK, so the first dirt was that Larry had hit up the son of a famous poet who shall remain nameless, Robert Frost. And we were going to have a big website where we were going to put all the stuff that was going to be in the Commons. It was going to be presumably here, I don't know, Berkman, a big humming mainframe. And the Commons would be here. A digital library of Alexandria. Alexandria. Except it would be in Cambridge. And so this was an idea. And then someone in the room, probably Larry or Hal, went, oh yeah, the net, right? It's distributed. It should be distributed. We actually shouldn't have a mainframe at all. And that, for me, was the moment when Creative Commons got off the ground. So it went from being a big collection of stuff that people wanted to share and would demonstrate that they wanted to share it by depositing it in this big mainframe to just letting people declare that they wanted to share. Yeah, so we had these conversations. But here was, in my mind, the real motivation that got me to do anything about it. It was Eric Eldred, right? So Eldred, before the case got to the Supreme Court, early in the case, Eric said to me, look, I appreciate you doing this. You're going to lose. But I appreciate you doing this. But the most important thing for me is that when you lose, we have something that we can continue to build upon, something that really means something to build a commons. Now, of course, being a Harvard law professor, I knew that I knew everything there was to know in the world. And I knew that Eric was wrong, and we were going to win. There's no doubt we were going to win in the Supreme Court. So I said to Eldred, sure, Eric, we'll do that. Don't worry. We'll build whatever you want after we lose. You lied to your client. Well, before you say anything further, it was a contingent obligation. And I didn't believe the contingency would come about. But I thought, when we won Eldred, that was going to create a massive amount of judicial efforts to rationalize copyright, and why would we need a movement when the Supreme Court was going to do it all for us? So that was when we began to build Creative Commons before the Eldred case was decided. We launched the party on December 16, 2002. Eldred was decided on January 15, 2003. So we were out there before the decision came down. But my view was this wasn't really going to be necessary. Like, we were going to unleash rationality from the top down. When we lost, it was clear, something Charlie had been saying from the very beginning, we had to unleash rationality from the bottom up. We had to unleash it by getting a whole bunch of people to believe and talk about these ideas, to convince a larger skeptical public about why it was important. So that's when things firmly shifted for me. But the commitment to take these ideas that we talked about and turn it into something real was a commitment that Eric extracted from us in the context of litigating his case. And Joy Chi, tell us about yourself and when you joined this stream. I was trying to remember. I think Larry had been coming to Japan occasionally. And I was one of the only people who was willing to read all of his books and be on panels with him. And so that's where I met him on a panel where I think the first one was for code. And then later it was the future of ideas. And then Larry came on sabbatical. Was that what it's called for a year? And I was fighting against the Japanese government on privacy issues and failing. And so I had some questions about democracy. And I was writing a paper called Emergent Democracy. Larry being a constitutional law professor, I thought I'd sit down and talk about corruption in the Constitution. And he didn't want to hear about that. He was more interested in copyright stuff. So he convinced me that was more important. Yes, I realized this recently. But I think one of the things that was fascinating to me was it reminded me a lot of the internet, where at the internet, when it first came to Japan, there were a bunch of law professors who were writing about how the internet was illegal. That you couldn't do it in Japan. It broke all the laws. It was fundamentally broken from a legal perspective. And you can't do it. And we pushed and pushed and pushed and fought and fought and fought. And it was a political battle at the beginning. But then eventually it became not a political battle, it became ubiquitous. And I saw Creative Commons sort of turning into this phase from a cool idea to an argument to something that would be just sort of ubiquitous. And so I kind of caught the tail end of that on the internet infrastructure side. But I thought that this would be really interesting to sort of be part of that transition. And so I got sucked in. Now in that trajectory starting, it's one of these ideas that really does need a lot of mind share to start working. It's like the first person with a fax machine just has a waffle iron with a phone attached kind of thing. So I guess for anybody joining the bandwagon early, it represents some leap of faith that this is going to go somewhere. Or maybe just indulging somebody that, well, it probably won't go somewhere. But I might as well go along for the ride. So I'm curious if any of you remembers a moment where it went in your mind from sort of whimsical questionable thing to, my god, this is actually happening. So another infamous copyright decision from the Supreme Court, Groxter, was handed down. Well, we were all in a Creative Commons board meeting, I think. They cited Molly's article. Well, so Jamie told me that during the board meeting, which was exciting. But the more exciting thing was Breyer's Descent, which, alluding, I think, to an amicus brief that CC staff had worked on, which made the point that there is lots of voluntarily available stuff to be shared on peer-to-peer networks. And Breyer referred to that, referring to non-infringing uses of these networks and said, so, for example, there are lots of things with Creative Commons licenses and blah, and just moved on. No footnote. No, you may not be familiar with the concept of Creative Commons licenses. This is after years in which opinions would say the internet footnotes, and they would tell you what that was. And so that to me was, I know Justice Breyer is probably the most tech savvy with it of the justices. So maybe he had to explain it to his colleagues, but that he would say that and without explanation. Like, of course, everyone knows there are Creative Commons licenses out there. That, to me, was a good milestone. Yeah, so I have a different metric for moments of recognizing the success. So this got launched originally with some money that Laurie Racine, who's the godfather of all great things in the public domain, gave us, we just said, we wanted to explore this idea. And she gave us, I think it was $50,000 or $100,000. Then the day Eldrub was decided, the Hewlett Foundation walked in and gave us a check for $1 million. Said we want you to make this work. And Molly took that, and we all ran and tried to build something very cool. And then a couple years later, Bob Young, who's one of the people who founded Red Hat, did the same thing. Just dropped a check for $1 million on our lab to build, continue it to a point where people would recognize it. And last year, we pulled together a group of people who were committing about $2 million a year for the next five years to support it. And I'm going to write that we're in the midst of a fundraising campaign right now. Yeah, I was getting to that, Jay-Z. He's got a timing point. We rehearsed this. But not very well. No, but the point is, so what academics do all the time to have ideas, and we like to talk about ideas, but when people who've actually built something in the world come forward and say, OK, we're going to back your ideas up with real money and make it possible for you to do something, it's both inspiring and a little terrifying, because you can't just throw it away then. I mean, you really have to work to make it possible. So of course, in some sense, wouldn't have happened with the ideas, but it also wouldn't have happened with people who came together to make sure that we had the resources necessary to build out the staff that now each year we have to feed about 400,000 of them right now, right? He feels that way. But that's also essential to this, and that was the part that always surprised me. Thoughts on when you knew it was going to be a success, or? When someone in one of my classes looked over to a woman who had a Coco Chanel bag and said, oh, creative comments. If there are any trademark lawyers in the room, you just didn't hear that at all. You know you've happened when you get your first trademark cease and desist letter. That's great. The mind share, when you say Creative Commons is an organization is devoted to so many different things, I guess the most visible of which, or the most literal of which, might be the licensing scheme that's at its core. How would you allocate the mind share over time? Is it about drafting human readable, machine readable, lawyer readable licenses and corresponding cool images for them, or is it public outreach, or is it what's the actual work of Creative Commons? Well, I'll start and the others can pitch in. It's all of those things. The licenses are built now, though there's a constant process of revising them. But one of the things that has dramatically changed was that Larry had one of his many ideas that appear to be amazingly stupid at first and then turned out to be brilliant in hindsight, which was he said, while we were still barely hanging on with our fingernails to actually launch Creative Commons to the United States, which has its own complicated copyright system, I guess, but it needs to be global and it needs to exist in every country in the world. So I made a long and impassioned speech in which I pointed out that this was impossible for, for Microsoft, it was impossible for Google, you know it was just impossible, you couldn't do something like this, the copyright laws were too complicated, you need the best lawyers in the world, everywhere in the world working on it and a movement on the ground and we didn't have the money and we could barely, all of which was demonstrably true, and he did his, no, we'll run across the canyon and it'll be fine as long as we keep moving thing that he does and suddenly all of these amazing people, professionals and artists and lawyers and law professors around the world said, actually yes, we want to work with you on this. So there can to be a CC Wales and a CC Italy. And an international movement around it and so one big portion of what goes on is, and I think the developing portion, sort of one of the big futures of CC is that international movement, I think that's one side of it. The other side I think is that Creative Commons has really tried to become the people who prevent failed sharing in general, not just with copyright licenses. The people who prevent failed sharing. Yeah, the people who go out there and make sure that failed sharing doesn't happen, that actually when people want to share that they actually can share, that they get rid of the barriers that stand between scientists who want to exchange plasmids easily between their labs, people who have databases that have been created at enormous expense by public money but can't even talk to each other. People who break down those barriers, unnecessary barriers and allow that stuff to come together. People who allow teachers who are working on their separate syllabi and their course materials all around the world to put that together and create a global learning commons. Now I guess some of the barrier to sharing could just be inertia or lack of consciousness about the opportunity to share, much of which the license and awareness of it can help alleviate. Are there more active barriers to sharing? Is it fair to say without ranker who are the enemies of sharing? Basically the people we produce for living, lawyers. There's a mentality we bring to this process which is not thought through carefully. I think it's reactive. But the mentality is to build systems which exert as much control as possible over the stuff that they're responsible for. So Science Commons has fantastic examples of this with these amazing projects that they're doing to enable basically Google mashup of data that's available by researchers who have had funded projects to produce data that's out there. But if you read the terms of service on the data sets, the terms of service basically forbid indexing of data in ways that make the mashup impossible. Now why was that put in there? It's because we produced a bunch of, we lawyer, law professor guys produced a bunch of lawyers who thought that their only job was to make sure that their client had as much control over this as possible. Never thinking about the, as Jamie would put it, environmental consequences of that way of deploying culture or knowledge or science. So part of the movement, and this is what Jamie's book of a decade ago and this book that just came out this year, Beautifully Frame, part of the objective here is to wake our profession up to the responsibility we have to deploy the tools that we deploy in a way that doesn't destroy the environment that we're trying to encourage. And there's, you know, you can think in the global warming analogy here is I think quite useful. I mean, in the early stages people deployed technologies and didn't think about what it was gonna do to the environment. And then people like Al Gore got us to wake up and recognize that we could actually screw it up in fundamental ways. And we had to start thinking about that. And I think that's kind of what our movement has been doing here. Lots of people, you know, not just here, obviously, but have been trying to wake people up to how badly deployed legal devices are going to make it impossible for us to do all the things we should be able to do. I just, this is completely irrelevant to that last comment, but it just, it slipped by while we were talking about Joey. And I just did want to throw it in. I remember the moment when Joey came on the board. Well, Larry goes, Joey's exactly the kind of person that we need to add to the board. We need diversity. He's charismatic. And the rest of us all kind of went. But going back to Larry's point, I think it is, there's an enormous problem that there are very few law school exams, Charlie Nessens maybe is one, that you get an A on by saying, my client should exercise less control. I will give up those rights. That's just not the way to an A. The A is maximum control, minimum responsibility. That's an A. That's the assumption. So that's one problem. But the other problem that I think Joey is one of the people who got me to see this is that we have a limited number of systems where we looked out and said, wait, if you have systems that are open, they can actually build their own self-reinforcing incentive structures and the incentive structure is something. Why should the scientist put the plasmid out there so everyone can share it? I'm busy. I've got an article to put out. Why should I share it? We know from things like free software or open source software that if you have a community that you actually can have structures that start to incentivize this, that start to build norms and communities and cultures of sharing that actually work and work economically. But they don't just happen. Sometimes they accrete, but a lot of times they require intervention. And I think one of the things that understanding the net, which Joey constantly uses the analogy of the net, understanding the net and the role that the net has to enabling those kinds of cultures of sharing is something that for me has been a central influence in thinking about CC. Yeah. Yeah, Troy. I don't look at things from a law school professor perspective. I look at them again. That's charismatic. Because I'm a geek. I look at things. He also has good dexterity, constitution, intelligence, and wisdom. Yeah. And plus 30 spell damage. But if you look at the internet, it was actually very similar, right? It was technically feasible to connect networks together. It just wasn't practical to do it at a low cost because you had to hire instead of lawyers, we hired consulting firms and big computer companies. And so it was always possible to remix if you went to Cannes and drank champagne and brought your lawyers along, you could do that. And the thing was it was just a transaction cost. And I think the key to the internet was interoperability and lowering the transaction cost enabled. Because I remember when the web first started, we already had FTP in Bofur. And all these professors and academics said, the web's stupid. It's just an Al Gore sort of flashy way of doing stuff that we already know how to do. And they drastically underestimated how much more stuff would get created by making it a little bit easier to do what was already being done by go for an FTP. And I think that what people drastically underestimate is the cost of the sand in the Vaseline, as you might call it, right? Which is this little bits of unintentional legal code that get thrown into these contracts that require somebody else to read it in compatibility. And so it's the interoperability and lowering the transaction cost creates this kind of explosion of innovation that happens, right? So one is completely unintentional, which is even if you want to create an open license, the fact that the Tokyo University license is different from the MIT license is friction, right? So I think that's unintentional. There's intentional, which are the people who are losing their business model. In the internet, this was the telephone companies and the vendors of the big routers that the telephone companies used to use, so the switches, right? So there's people who are actively against the movement, who are the people who lose their job because they're in those layers that get disintermediated, right? And then there's just inertia and stupidity, which is really actually a powerful force. But I think that a lot of the law stuff is like, especially when we look at the science stuff, there's 10,000 different clauses that I think Will Banks has identified in different terms, right? And they're not put in there out of malice. They are partially about this protection, but mainly it's just that people don't understand the value of interoperability and low friction yet. And I think that it's, on the internet, the geeks get it, but I don't think that the businesses get it yet, and that's why, but now that we have people who actually try to share and then it fails, then they get, it's like, aha, right? And so I think that what's really interesting is that I like your failed sharing term because they're actually, when you go to Hollywood, they don't really wanna share. So that was a tough, because we're fighting against two problems at once, but what's really cool about the science and the academic stuff is it's a little bit easier because the funders and the academics and the users all wanna share, but it's still failing. And then it sort of isolates the problem. Now in the copyright policy space and I guess in the space created in the financial flows that happen thanks to copyright, the licensing organizations and such, in both those spaces, policy and operations, there are institutions, organizations, there's kind of an established order that has been a world a little by, obviously, development of the internet itself. And I'm wondering also how that space was affected by the arrival of Creative Commons. How is Creative Commons was, is viewed by the World and Electroproperty Organization, ASCAP, BMI, the usual suspects? Were they like, great, another person to be at the table with a little tent in front of them? Or is it like, you're all a bunch of communists? Well, in the beginning, it was you're all a bunch of communists. And Jamie and I went to a bunch of meetings early on with WIPO where they had to be very careful about being seen in public with us and the meetings were all very quiet. But slowly, WIPO has come around, mainly because of the activism of countries like Brazil that have begun to demand that WIPO adopt an agenda that actually is responsive to its mission and its mission, they forgot, is not to work for publishers or the recording company, but to work for the UN to advance the interests of the world, right? So once they recognize that this was part of their mission, they've been very good about including more of the insights that we want to provide into the process. So I think that's been progress. The downside is that there's still this reversion to the idea that the idea of intellectual property rights or copyright includes exercising them to exclude, that you can't have one without the other. And so we have both had experiences, Molly I know has had experiences when she was the first DD of Creative Commons of people who assumed that if you wanted to enable any kind of sharing, that meant you were trying to attack the property right and the trope I generally use is, so if you were the head of the world property organization, would you have to forbid Christmas? It's like, do we have to get rid of it? Because clearly giving property away, right, is a fundamental assault on the concept of property itself. Was there anybody who was like, now I get it, so you're totally right. I think the story that went out was Creative Commons' next, is next enemy, Christmas. Yeah, got it. Yeah, there's also one more part about this, like learning the way this worked. It's important to remember much of the original support for Creative Commons came from the Red Hat Center. And in some sense, the Red Hat people were inspired to think how can we carry the same ideas into a wider sphere, because they had prospered on this model of creativity in the software space, right? So remember, Richard Stallman launches the free software movement, and he has a license to guarantee that every modification will be as free as the stuff that was modified. And that percolates to build a free operating system, the GNU operating system, and Linus Torvalds comes in and builds a kernel that he then licenses to fit within that free software project. So we get the GNU Linux operating system as a functioning, powerful alternative to proprietary software platforms. And companies like Red Hat come along and say, we wanna make a bajillion dollars on top of this. We wanna leverage this sharing economy to produce enormous value for our shareholders, but also to the world. And what was interesting was, even people like Richard Stallman didn't say, stop, you're stealing from us. No, they said, please, figure out how to make this a successful hybrid between our sharing economy and your commercial success. And that was enormously important to making sure that the free software movement actually succeeded in taking over the world, which I think it will, not yet, but will. And so what they said was, not quite this way, but this is what I think they're aiming for, how do we do the same thing in a wider sphere? And so I think, I just wrote my last book in this space, Remix, actually has, I think, a very interesting interview with Bob Young, who's here, who was one of the Red Hat founders, where he was explaining this all to me, and I recognized that everything he was telling me was what I thought I was discovering in this book, but he was like, no, we figured this out 10 years ago, and I'm glad you're finally writing it up, but here it is, that's exactly this point. And you can see what the inspiration was in Red Hat moving this into this space, and I hope we succeed as much as that movement has. How necessary an adaptation from the principles of the free software movement, do you think it is for creative commons to offer some licensed choices to commoners that would be anathema to the strict conception of free software, such as, say, a developing country license that would license something freely within certain geographic boundaries into certain peoples, but withhold all copyright traditionally, so, say, in the boundaries of the United States or the founder's license or something like that. Yeah, so we made a very important strategic decision, right in the very beginning, to do something different from what Richard Stallman did. So Richard had a very clear conception of what software freedom was, and he embodied that in a license, and I think he had credibility to do that. I mean, he actually was somebody who was writing software, this is what he did, and he understood the community because he lived in it, and he could speak for it, and he spoke for it authoritatively, and eventually I think the world has seen that between that and the BSD license, this is the 98% of licenses. When we launched, I don't think any of us felt like we had the authority to speak for creators around the world. Like, we had no way to say, yes, we know what freedom is for an author of novels and scientific journals and poetry and films and music. So we said we're gonna create a suite of licenses and let people opt in to what they believe is right. And one thing that did, which I don't think any of us, or at least I certainly didn't see it in the beginning, one thing that did was it brought a whole bunch of people into the movement and then encouraged them to argue about what freedom should be. So if you look at the educational licenses, originally a bunch of educators adopted the most restrictive licenses that we had. And people looked at what we did and said, this is terrible, you see what they're doing, they're adopting all these really terribly restrictive licenses. But what then happened was that these educators then got together in their conferences and they would have panels where they would say, what is the right Creative Commons license for education? And you see a progression away from the most restrictive licenses to licenses that actually reflect what the appropriate freedom was. So by giving them a language within which to talk about what freedom should be here, I think we helped the movement figure out what freedom should be. Now I still don't think we have the authority to say what the right freedom is for every domain. And I think, but what we need to do is to encourage exactly the kind of argument that happened in the software movement 25, 20 years ago. An argument in each of these creative movements about what's the appropriate architecture for freedom. And then we just wanna provide the infrastructure that helps them express it. Among the spectrum of license tags that have come and some have gone under the CC rubric, are there any you specifically remember as coming forward and you just weren't gonna go there? Were there any cool tags that never were? Oh yes. Oh, Larry had brilliant ideas. Some of them remained. You have an NDA here, you can't say that. I had a wall display of licenses that I killed. It was like, you know, some people shoot a deer. I had, you know, license ideas that occurred to Larry in the shower. You know, just tell, I'm finished breakfast license. The time limited licenses, that was my favorite one. You know, better finish the book quickly your licenses ticking. No, there were many. I mean, I think one of the important ones was that we really did have this discussion and we were constantly being pushed by, it wasn't even both sides, all sides. Some people saying, I can't do my kind of creativity unless you allow me to restrict in this way. And then on the other side, people going, I can't believe you're locking it up that way. And so the board I think reflected and struggled with those and gradually I think we've been cutting down the number of licenses. You kind of snuck attribution into everything, right? Attribution is no longer an independent variable. Because 98.5% of people picked attribution at which point it's clutter, you know? It's like, so I think the people who don't want attribution could put it in the public domain. I mean, I think at that point it becomes easy. I think one of the things that happened, Larry's exactly right. What we didn't understand was that the most important thing about the licenses was not that they were licenses. It was that they created a space, a focal point around which people would make communities. That was true of the international movement. That was true of the discussions. That was true of the movements in science. People go, we'd like to do this in science. And it was like, they had a this to point to. So the licenses were almost, they were a trope. They're very important licenses. Their great licenses are very well written, but they aren't the main thing. So speaking of a space, a community where people can exchange ideas, there's a huge brain trust in this room. So I'd love to encourage people with questions or with anything they wanna say. I mean, just looking around the room is just amazing people here. Esther Hargitay has raised her hand. Do we have a way of advancing a microphone up? Look at that. Esther Hargitay. Thanks. Should I say who I am? Beyond that? Sure. Okay, Esther Hargitay, a fellow at the Berkman Center on the faculty at Northwestern. Huge fan of CC. I have over 10,000 images on Flickr on under Creative Commons license, but a lot of people don't. I study differences in people's skills using the internet. So this is not just based on anecdotal evidence that people have very different abilities when it comes to understanding different things digital. And I'm wondering what you are doing or what others should be doing and who those others might be to educate people about Creative Commons better. Obviously, you've already done a tremendous job, but there's a lot more room. Because again, I believe that even just on Flickr, a lot of those people, I think would happily share what they have up there. They just don't know any better. So I'm just wondering if you could address that. Yeah, could you take a good photo, please? Well, first of all, I think part of it is the internet business problem, which is all of, like I invest in internet companies and all you're trying to do as much as possible, your single focus is conversion rate. How can you get a user to sign up and start using your service? And every single step that you put into that step before they become a user lowers your conversion rate and lowers your revenue and lowers your value, right? And so all internet companies are looking at how can we simplify the process and that simplification process is about taking things out that are unnecessary. And until Creative Commons becomes something that the majority of users need or is really easy to implement, so they don't really have to think about it, it's always an added cost to the deployment of a service. And then once you're in the service trying to get it in front of people, again, it's kind of a chicken and a egg thing. I think that we are going to see, like for instance, Photonauts is one of my companies, it only uses Creative Commons photographs, so you don't have a choice. You have to use Creative Commons if you wanna use Photonauts. But I think that there are a couple of things that are happening that are very important. One is that RDFA, which we've been working on, working very closely is now an official recommendation of the W3C and it basically puts into the XHML, the HTML, the ability to mark up the different objects on a webpage with the author and the license and everything like that. Once that becomes a web standard and an open specification, then what happens is that everybody that builds any application that talks XML or HTML, all the licensing information will be in the data. So instead of having to write hacks, right now when you implement Creative Commons, you sort of have to write a bunch of code and it's not standardized and it's still very sloppy. Eventually once XHML is out there and it'll be a little while, all the tools that we have, whether it's Photoshop or your camera, right now it's kind of a pain to explain to people how to do it but once it's in the official kind of specs of HTML, it'll be much easier to build into the tools. And so- This is just a tantalizing taste of what you discussed at the Creative Commons technical meeting today. Yes, and so I'll be brief. So basically it will be much easier to implement into the tools. And once it's in the tools, then I think that the cost of implementing this will become easier. And I think that a lot of this is about interface design. So in a combination with an interface design and also just a tipping point in the number of people who actually know what it is, is going to, and so we have a pipeline full of, so one thing that's interesting, since I joined the board, we're spending less time going out and explaining to people why they need CC. We just have a pipeline of people who are coming to us. We want to do it, but we don't know how. Can you explain it to us? And right now it's kind of a pain because we sort of have to go in and do it for them. But once it's built into the standard, it's going to be a lot easier because we'll just be able to point them to things. And so right now I think, I mean, most of the energy is helping failed sharing. And so I don't think there's a single sharing site that doesn't want to implement CC more now. It's just that they just don't have the cycles or they don't have the skill to do it. I don't know if I answered the question well, but. Lots of hands going up. Oh, did it go off? Maybe I'd have to bring it up on the board. Try again. You maybe have turned it off instead of back on. All right, no, no, no. I'm Chris Peterson. I'm a student at UMass Amherst and an intern here at Berkman Center. So Creative Commons has been a great success on sites like Flickr and on a lot of great things. You can, everyday people can take part in the rethinking of copyright law by using Creative Commons license. At the same time, a lot of what people want to create seems to be based on big media content. You know, Larry wrote in his book about anime music videos, different things on YouTube that people have done that are creative, but draw some content from large proprietary, big-name media corporations. What is it going to take to move big-name and media corporations, the RIA, the MPAA, towards accepting a Creative Commons-like structure? Will it ever happen? Will it ever move there? Is that even the point of Creative Commons? I think, I don't think Creative Commons, I don't think that you're gonna see the MPAA say, yes, we're gonna put out our next blockbuster under Creative Commons licenses. I actually don't think that makes sense from their, from their business model. I think what you might see is slightly more rational behavior about using the law as a club to prevent remix, which is not to say that they license under CC, but rather that they read Larry's book and kind of figure out, oh yeah, there actually is something called Fair Use. I thought it was your book they're interviewing. Well, whatever. And that they actually should, they actually should recognize this. And I mean, I actually do think there's a measurable difference in the degree of sort of paranoid control fantasies that are imposed on, you know, sort of user-generated content sites. It's declining. And also just going back to the last question, I do think it's important, and we see this constantly CC because we deal with so many different domains. You know, when Joey was talking brilliantly about the technical specs, I was thinking of the conversations that I have when I walk into a bunch of teachers in North Carolina who just don't know anything about copyright and have been told, you know, a series of sort of basically lies about what it is and what Fair Use is and so forth. And the point there is, I think, and this is the other side of this, the technical side is one side, there's the side in the other, which is we found that people start to understand when Creative Commons is a tool that lets them do something they already wanted to do, right? It's not, you can't go out there and say, there's something else you should be thinking about, along with all the other things you're thinking about. It has to do with copyright. That's going nowhere, right? But it's like, don't you want to be able to use her syllabus and she can use yours and at the same time. And at the moment that that happens, then we move on to basically Joey's issue where it's the technical concern. And so I think in response to your question, I think the dramatic change in the big media companies is when they want to have masses of remix content out there if they ever do and they suddenly start thinking, oh, actually our current attitudes aren't going to produce the results that we want. Yeah. Is that on? Yeah. My name's Carl Fogel of question copyright.org. One of the wonderful things about Creative Commons has been that you've very wisely, I think, set up a situation where everyone who encounters Creative Commons is an ally. It's someone who wants to share, who wants to use one of your licenses. But there's this sort of great unexplored ocean of copyright issues out there with where you've got one artist who wants to use something that the original author doesn't want to use. I doesn't want to let that person use. And is it part of a long-term strategy to start trying to persuade either those artists who don't want to share their stuff or to persuade legislatures to lower the amount of monopoly control people have so that sharing works doesn't have to be a choice that all the parties agree to. It can be one person wants to share, maybe the other person isn't comfortable with it, but there's a limited amount that they can do to restrict it. Well, many of us here live in these different roles. So in the Creative Commons role, it's not been our objective to change the law. We think we can build infrastructure within this system of law that enables people to choose to share. But I don't think that's enough, obviously. I think that we also need legislative change and we need judicial change. And so at Stanford, we have a Center for Internet and Society that has a fair use project which is litigated and succeeded in a whole bunch of cases to force reasonable behavior on the other side under the doctrine of fair use, pushing the line. It's a fair use and film project which working with American University and a bunch of insurers got a bunch of insurance companies to say that if the film producer can certify that they've gone through fair use best practices, then we will issue the insurance you need to release your documentary film and the Stanford Center will litigate for free if it turns out you're sued because of those standards. So these are ways to create incentives to push the law of fair use. And obviously some of us have spent a long time trying to convince Congress that they ought to think more rationally about this. And it's the last such effort that convinced me it was a waste of time to try to convince this Congress about reasonableness in this space because of the corruption stuff that I wanna spend the next 10 years of my life working on. But long before we deal with the corruption issue, long before we deal with Congress, I think there's lots of movement to be made in these other places. We just need to get these different conversations going at the same time. And that's sometimes hard. I just add that a lot of people who don't wanna share, it's irrational. And that you lead by example. So if you get musicians who share and make more money, or if you get book publishers and authors who share and are more successful. And for instance, in Japan, they're not necessarily creative commons users, but we have lots and lots of sharing where the anime companies are happy for remixes and republish comics that have been remixed by, or rewritten by fans. And there's lots of examples like this in Brazil with the Technobrega movement and stuff like that. And I think that showing that the success, and actually the fact that these people are happy is a way of leading through positive example rather than sort of arguing about it. And so I try as much as possible not to argue with people who don't wanna share, but to try to sort of show other people who are happy with it. Has anyone ever been sued for purportedly violating a creative commons license? And if so, who or what kind of offender or violator? And are there other ways to enforce or encourage compliance other than litigation or threats of litigation? There have been cases, the biggest ones have been in Europe actually. So Adam Curry had photos on Flickr that were licensed under a creative commons non-commercial license. And a newspaper took some of those photographs and published them in violation of the license. And Adam brought a lawsuit against the newspaper in Amsterdam I think, is that where it was? Yeah, and one on the basis of the copyright violation in that case. There have been other similar actions, but from a law's perspective, professor's perspective, we haven't yet had the case that tests the core idea in the context of creative commons. But we did win a case this year where we provided an amicus brief in a case that was about the free art license, artistic license, the artistic license that was used in some model railroad software. And the very technical, boring legal issue that was that issue in that case had been decided by the district court in a way that basically said all creative commons licenses are invalid or at least ineffective. And we succeeded in getting the most important IP court in the United States to reverse that and to reverse it in terms that plainly establish the infrastructure of creative commons licenses and all free licenses, the GNU GPL license as well. So I believe this year we can say we have established legally the infrastructure in a way that guarantees it will be respected going forward. Hi. I'm curious as to what would be on a wish list of yours for the incoming Obama administration either symbolically, legislatively, et cetera. Well, they've done something already, right? So the Obama administration, of course, is the expression of all of our hopes for a whole bunch of things. But I've, and I was trying to be helpful to the campaign in the primaries to think about technology issues, but I didn't advise them at all about IP issues and they didn't wanna hear my advice about IP issues because they knew it would be terrible news if people thought that they were getting news from me about IP issues. But when they launched change.gov, they launched change.gov with a very prominent all rights reserved at the bottom. You looked at this and thought, wow, this has changed. A quasi-government site is now claiming all rights to itself, right? Which of course, in the American tradition, government sites have no copyright, right? So we began a conversation with them and they've now changed change.gov to be licensed under a Creative Commons attribution license, the freest license that there is. And that's because it's the transition and the transition is not actually the government. When it gets to be the government, they recognize that the stuff they produce is not protected by copyright at all. It should be marked with a public domain sign. But there's a recognition in there of that. And I'm hopeful that this grows inside the administration. But I actually think the one thing the Obama administration can do is to help remind all of us of a certain responsibility that we have. One thing the Obama administration is gonna try to do is to remind Americans, we have a responsibility to help build infrastructure for our country, right? That means education and roads and an internet system that actually is equivalent to the potential of America. And all these things that for the last 20 years we thought we could get for free without doing anything. We're actually gonna be aggressive and focused in achieving those things. That's what the administration wants to do. And that's an inspiration that I think we need to carry into our place too, right? So I've already commented and tried to thank people who have done an enormous amount to help us build the infrastructure of the comments. It was Jamie's way of thinking about it. That's what we're doing. We're building the infrastructure to make it easy for people to share legally, right? But all of us have a responsibility in helping to build this infrastructure. It doesn't happen automatically. And that responsibility you meet by taking the step to release your own material freely in a market like that or helping people understand why this is a problem, creating arguments about it. And also by supporting institutions that are trying to do it. So institutions like EFF that are fighting for the freedoms here or public knowledge. Or what's another one? Oh, I know one. Creative Commons, right? I can report that there's good news and bad news this year about building this infrastructure. We've actually been more successful this year in getting Obama-like donations to Creative Commons than in any time in the history of Creative Commons. There are more people who've given money individually, small donations than ever before. That's fantastic. But on the other side, the corporations who have typically given us a substantial amount of money to help build the comments are in deep trouble. They're all disappearing, right? And so there's an enormous risk, not just in our organization, but in a whole range of these organizations that we will not be able to fund this work over the next year. And I think that should be a recognition, a call for all of us to see that we need to actually step in at this time more than any other time and make sure that this infrastructure can survive and continue to grow. So part of this reason that Melissa, our fantastic development person, pulled this together where she thought we could help inspire some of you to help us do that. And not necessarily by dumping all the money you have into a plate, but there is a plate in the back where you can do that. I think at the reception too, the beef's wellingtons are $5 a pop. Okay, great. But also by helping to spread this message, the commons movement right now needs people to step up and support it. It's what you have to do to support infrastructure. It doesn't come for free. And all of us, not just Creative Commons, all of us need that support this year in particular. So one more question and then we'll wrap it up. Yeah, my name's Andrew and I started a nonprofit note sharing website for college students. And one of the things I recognize is the importance of sharing barriers and education. And it comes from two sides. It's from the side where professors want fair use ability to be able to print out and read a poem or an article in a classroom, but also the possibility for having open courseware movements like MIT's and perhaps even distributed open courseware that students can participate in. And I was wondering what you thought of CC in the education realm. So this gentleman is not a plant, but thank you from the bottom of my heart. So when Larry spoke, Larry was doing the sort of swelling hope but impending doom and a nice little dollop of guilt at the very end. And I get to, good guilt too. I liked, I'm Scottish, it was good guilt. I'd like to sort of build up the swelling cords of hope again. Creative Commons is great. And it's great that we think, we look at stuff like Flickr and it's great that we have the kinds of communities that we have. But what excites me is the possibility that in five or 10 years time we go, remember what it just wasn't common that like the best educational materials in the world weren't open educational materials that anyone could customize. Remember textbooks that you had to read always the same way because they weren't customizable to your particular area. What Arash Bissell is working on with CC Learn is dealing with exactly the problems you're dealing with. And they're big problems. They're cultural problems, they're education problems, they're legal problems. But remember when that couldn't happen, this is dumb, right? I mean, education. You can't stop teachers telling you about how they teach, right? I mean, we're all teachers like, no, no, no, let me tell you what I did. And people are running away from us. They want to share and there's all this stuff in the way, right? I'm not going to use Joey's wonderful sand in the Vaseline metaphor that was a great album by Talking Heads. In science, you know, we built this web. We have a scientist who builds a web for communication so people can exchange scientific data. And guess what? It works brilliantly for porn. It works brilliantly for buying shoes. It works brilliantly for teenagers flirting on all of Joey's sites. Not so good for science because why would we want to lower down the barriers to scientific exchange and make it easy for scientists to work on problems collaboratively across space and time? The future is moving the CC idea into those domains where it should be so at home, where it should be an easier sell than in the domains we currently are. And we really need your help in that. And by help, I mean the help with dollar signs in front of it, as well as the help with proselytizing and rethinking and volunteering. Because this is, I am, I could never have imagined how much the ideas that Larry and others came up with with CC could succeed. We all feel that. It's like, wow, wow, this is amazing. I always think, huh, and it's a non-profit. Yeah. When Larry resigned as board chair, I should have thought, and I was thinking, okay, I'm going to be chair, Creative Commons board is going to be very exciting. You know, when Joey stepped up as CEO, what I should have realized is they're both very savvy and that they realized that there was going to be a global financial meltdown on my watch. Thank you both very much. But when I look forward for the next 10 years, even with that, and it's a real hit, and we're taking less of a hit than some places, but we're really taking a hit, guys. I am actually more excited about the next 10 years than I am about the last six or seven or eight. The potential is enormous. Science wants these ideas. Education wants these ideas, right? And we have, we've made so many of the mistakes already that we actually won't need to make them again when we move into those areas, so please do help us. Molly, if you'd be willing to have the last word here, I know that you've been doing a ton of scholarship lately in intellectual property, and in particular, a piece about atomization of intellectual property that includes, in a way, some interesting worries about directions that movements like Creative Commons could go that might actually be self-defeating to the original purpose. So I was wondering if you could give us a little dose of fear and then some of your requisite hope to end us out. Sure, that's, let me say something else first. I'm not going to answer that. Wow. What Larry always says is, I'm not going to pretend to answer your question. Well, what Jamie was saying just reminded me that at that first meeting that I only heard tell about that happened here at Harvard in 2001, I do think one of the biggest aspirations of that meeting was to do this work for science, that we recognized that that was a place where there was a problem of field sharing. And in a lot of ways, I think of what we've done so far is the, you know, test of concept that now we get to deploy in places where it's even more valuable. So the success so far of Science Commons and seeing that, I think, is bringing us full circle to where we started. So atomism, in a lot of my thinking about Creative Commons and my commentary on it and my academic work, I think back to Dan Gilmour and his explanation of the shift from big media culture to citizen journalism. And one thing in the policy space that Creative Commons demonstrates is how poor a fit the copyright built for big media is for the citizens that are empowered by the technology. And that's why we have to go through all this work to overcome failed sharing problems because what we want to do is not the default that copyright sets for us. And that's an important role for Creative Commons. But I think the risk is that we don't want my copyright for every individual citizen journalist to have their own handcrafted copyright even if they have a brilliant idiosyncratic idea about exactly how much they want to claim. And I think originally, as Larry suggested, we did tilt a little bit towards my copyright because we didn't want to impose our version of what your copyright should be. But the danger is that that just leads to lots of failed sharing. If everyone has their own version of copyright and we want to combine everything into a real true commons where we can reuse all of each other's stuff, the my copyright vision won't work. Because three kinds of Cheryl-like licenses, if they're different than the other tags, you can't. I'm allergic to each other. Right, so that's why I think a lot of, what we've seen partly by not missteps, but by experimenting in the Nestonian spirit, we have discovered some of the unintended consequences of too much my copyright. And so that's why, especially, I think, as we encounter these audiences that are super enthusiastic about sharing but have been sharing in their own incompatible ways, a lot of what we're doing now is channeling those idiosyncratic preferences in a way that builds the brand of sharing and also reduces the barriers to sharing and a compromise between a default of all rights reserved and my copyright, which I think is, although it sounds like the perfect answer in a world where every individual is empowered to be a media giant, I think it's the wrong answer that sharing requires some mind share and the Creative Commons helps build that by channeling preferences in a limited universe of choices. Oh, and sharing other resources, energy, et cetera. Say it like you mean it, Molly. Well done. Well, so really, I think one reaction people had to our initial idea is, and this goes to Joey's point, everyone can write their own license. You could just write on the bottom of your website, do what you want with this, and that doesn't take any lawyers, it doesn't take any resources. Why do we need to build the infrastructure? Well, it's because the sharing doesn't work if everyone does it, hacks, copyright themselves. We need an infrastructure that's really about mind share and that's why we need the resources to keep the institution going. The Tower of Babel was an early metaphor for license interoperability problems. How did that story end? I think that wasn't good, yeah. So here on a Friday night, in cold and potentially icy Cambridge, we are a self-selected group of elites who know what's important on a Friday night and also can appreciate the aroma of a good beef Wellington. And on the webcast as well, I don't wanna leave those out who are in the middle of the night somewhere listening to this or watching this, but I do see that over the next number of years, the mission is for the people that Esther would quickly point out to us, have no idea what we're talking about, how to get the icons under their noses, how to get them into the spirit of sharing, either top down through the power of the default so that we just make a small change to flicker. And before you know it, everybody's creative commons and had no idea. Combined with peer-to-peer proselytization that will allow people to recover what I guess they already knew in kindergarten, which was that it's fun to share and survive the kinds of curricula that actually recommend that school children attach the copyright symbol to their homework as a way of knowing that they are authors too. And that anything less than an A is a derivative work. So it's great to look around the room and to see so many people so intimately connected with this movement, not all of whom, of course, in fact, most of whom haven't even had a chance to weigh in, that will come now at the reception. And I especially encourage, I know it happens anyway, but geeks sometimes tend to be introverts and we have a disproportionate number of geeks here. You have license to meet and walk up to people you don't know and greet them and find that you have something interoperable. So with that, thanks our panel and everybody else for making this possible.