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{Tuesday, December 17, 2002}

I'll get back to my update on last night's creative commons rollout soon (it was interrupted by an IE flakeout), but here's news that the verdict on Elcomsoft is in and the decision is NOT GUILTY. The judge's instructions were that that the jury should find guilty only if they found the company's motives were to willfully violate the law. The jury seemed to find that the law was confusing, elcomsoft's intention was to enable uses of legal works, and they had no intention of breaking the law. The case is a big win because it says that violating DMCA to enable legal uses of a product -- as opposed to allowing illegal copying and distribution (so called piracy) -- does not lead to a criminal conviction. Will the decision lead to greater freedom in reverse engineering copy protection systems for legal, fair uses?

posted by Richard Koman 1:57 PM Comment
Notes from the Creative Commons launch tonight:

These notes will make the basis of a story for O'Reilly Net tomorrow.

Interview with Larry Lessig:

Creative Commons is comitted to a series a projects intended to expand the public domain.

1. An engine to build licenses that are machine readable. Express dimensions of public domainness in a) legal code; b) plain language (Commons deed); c) metadata.

We're seeding the ability to do this. In the future we'll introduce searching technologies that will let you say "Internet, show me stuff that has these licensing attributes. We want to increase the space of stuff people know they can use More details on the CC site, which by the way seems to be broken. Drop me a line (rkoman@attbi.com) when it's fixed. Basically, the license lets you set terms for your work. You can allow copying only with attribution (or you can allow copying no attribution), copying only if you are paid, you can allow derivative works or not, and so on.

I mentioned that O'Reilly had had conversations with him about putting stuff in founder's copyright, but there is no form to fill out to turn off the copyright. The cr system has a default of NO with regard to ALL creative work. CC wants to change that to a no on some creative work, yes on some creative work, and a mixture of yes and no on a range of rights. At the big event on Monday, Lessig also announced the second project:

2. Founder's Copyright. The original copyright specified in the Constitution is 14 years renewable for another 14 years. After 28 years the work enters the public domain. Lessig announced that O'Reilly would be putting 200 of their works under the Founders Copyright. But in a conversation with Tim O'Reilly last evening, he pointed out that those 200 works are books that are already out of print. "What we need to do is put current books under the Founders Copyright," he told me. Assuming that authors agree, the out of print books can simply be put into the public domain, Tim said; there's no point in claiming another decade or two of copyright on a title that's been out of print for years.

As for books currently in print, each author would have to agree to move the book from standard copyright (Big C, as a creative commons Flash movie has it) to CC's Founders Copyright. O'Reilly contracts will be changed for all books signed in the future to stipulate that the book is published under Founder's Copyright. It's a no brainer for us, Tim said. As a computer book publisher, O'Reilly doesnt have any titles that are useful 14, and certainly 28, years after pub. Any titles that are still relevant so long after their initial pub, think Unix in a Nutshell, are only relevant because they have been continually updated and it is the original edition, not the latest edition taht would enter the PD. Thus, Tim sees zero risk to the company by cutting copyrights back from life+70 to 14 or 28. He allows that he might feel differently if he were a fiction publisher.

But FC (founders copyright) has a huge advantage to the community at large. Take books like the X books; they're long out of print -- the market no longer supports publishing those books as a commercial endeavor. And of course, old out of date computer books are of limited use. But once in the PD, the books can be updated and revised by the people who care about having up to date documentation on X. O'Reilly no longer cares about this information; let the people who do care about it take ownership of the core texts.

This brings us to one of Larry's strongest formulations in my interview with him, although he did not mention it at the launch party. All works can have two lives he said -- the first is a commercial life. And at a certain point that life ends. But copyright doesn't end; it goes on and on, and so the work is trapped in copyright purgatory. But founders copyright offers a work a second, noncommercial life. Or you could say a work dies and goes to public domain heaven. In its public, noncommercial life it can go on to engender derivative works, be published by many different publishers, be the basis for sampling, be the basis for some new creation. Certainly the X books have lived their first life; founders cr allows a second life to occur long before the 100+-year standard copyright would allow.

And since it takes far less than 14 years for most commercial works to end their private, commercial life, the CC license would allow a publisher to change the terms of copyright when it was appropriate. Under CC, you could say, upon pub, all rights reserved; and then, later, when the thing no longer had any sales -- now only some rights are reserved (the requirement for attribution, say, or the ability to do derivative works.) It's completely up to the publisher to set the rights, and it doesn't lock up all works for life + 70, regardless.

Tim talked about these issues in terms of recycling. Just like you recycle your newspapers, so they can be turned into paper or cardboard boxes, creative works should be recycled. When you're done with them, when controlling them no longer provides any value, then release them, allow other people to make creative cardboard out of them. CC is so brilliant because it is so respectful of the range of desires a creator might have. Disney can have Mickey Mouse forever, in other words; CC just enables millions of other works to be put in the public domain, if tahts what the creators want.
posted by Richard Koman 12:15 AM Comment