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Difficulties with Licensing

August 3rd, 2005

I had one of those moments of insights today. It starts on the bus where I finished the last few chapters of Prof. Lessig’s second book, The Future of Ideas. The chapters culminate his lengthy review of the IP system in America and how it is killing our collective culture. I don’t need to summarize his points here to tell the story, only to say that I very much agree with his idea that free culture is a concept worth protecting.

Where I have occasionally disagreed with the Professor is with his approaches to reaching a healthy free culture. I’ve certainly been supportive of cases like Eldred v. Ashcroft (trying to repeal the Sony Bono Copyright Extension Act), and I’m also a big fan of Creative Commons… but other tactics (like massive copyright reform) have been extreme at times.

Today I received an interesting assignment at Wizards relating to a fan site. One of the managers had decided to allow the fan in question to post certain items that would not be permissible without Wizards permission (read: he needed a copyright license). I was asked to identify what kind of rights and restrictions we should establish when granting this person permission.

Turns out that when you are trying to protect your future, unforeseen uses, and potential abuses that it is very hard to encourage “free culture.” I consider myself a strong supporter of the movement, but I had a very tough time coming up with ways to protect the underlying right yet allowing others to make “free culture” type uses. Which leads me to my insightful moment… that’s Lessig’s whole point!

When government gives someone a privilege, like a copyright monopoly, they will do whatever they can to enhance and protect that privilege. Which means that even if we each individually believe that free culture is a “good thing,” we will each individually act contrary to that belief because its benefits us individually. I don’t think it is reasonable to expect individuals to grant their copyrights and whatnot into a “free culture” setting without a societal commitment. The FOSS movement has accomplished this by giving something back in return for giving code to the community (access to everyone else’s code). But that sort of sharing works best in software… not so well in other works. So, if we are serious about this “Free Culture” and want to return to the society that gave us our community, its going to require a societal act, because individually we are going to act against our pasts and to the detriment of our futures.

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