used to be so easy, back in the days of paper.
If you wanted to
give something away, you gave it away. You could even write a little note
saying something like, "May be copied with attribution." In the age of
digital versions of creations, it has become nearly impossible to name
something that can't be copied off the Internet — stories, poems,
drawings, photographs, movies, music, etc. — and copied quickly, efficiently,
and with no degradation from one copy to the next. But, alas, it has also
become nearly impossible to avoid copyright law's protections for the creator.
Now generous creators find it difficult to put their works in the public
domain for all to use, copy, share, and improve.
Many do not want
to give up their copyright and the financial return on their creative work,
but a growing number of creators do want to make their creations freely
available. Since Congress has worked steadily to extend the term of copyright,
the amount of work falling into the public domain has shrunk.
Who are these people?
And why am I writing about them? After all, I follow cases such as Tasini
who filed suit and went to the U.S. Supreme Court to assert the rights
of authors in the proceeds of the subsequent sales of their works by publishers
to database services. And what about the Veeck case (most recently
heard en banc by all of the judges in the 5th Circuit Court of Appeals)
and apparently on a fast track to the Supreme Court, which deals with the
rights of private authors of model and uniform codes to retain copyright,
even after their codes have been adopted as law by states and municipalities?
Are these parties
particularly greedy? Or, are those who would put their own work into the
public domain particularly noble? Let's see.
A Bit of History
Once upon a time
those who had a computer and a modem could download freeware and shareware
— software that came either free or reasonably cheap. Remember? I used
to download lots of software, try it, and then decide whether I wanted
to keep and use it. My personal favorite was Home Budget Management System
(HBMS), developed by a gentleman in Florida. Since it was shareware (and
not freeware), I forked over the $35 for the license and was placed on
his mailing list for when he upgraded and improved the program. I eagerly
upgraded each time — probably for little more than the cost of the floppy
(remember 5-1/4-inch disks?) and mailing — about $10. Those were the days
— the early '80s. Before the World Wide Web, when it was just the Internet,
and much tougher to maneuver — like the Wild West or the Electronic Frontier.
But I digress.
In 1976 copyright
law was applied to software. Therefore, under the copyright law, someone
could take freeware or shareware, make their own "improvements," and create
a derivative work. They could then copyright their "new and improved" software
and sell it for a bundle, compensating the original creator only if the
creator retained the copyright rights — but owing nothing if the creator
had put it in the public domain.
So how could software
authors, who wanted to put their work out into the public domain for all
to use for free, keep their programs free forever? There was the rub. How
do you share something you have created when its intellectual property
status would fall under copyright law? Tougher still, how do you share
it and make sure that no one else takes it, makes improvements, and turns
around and charges an arm and a leg for it?
In 1984, believing
that software should be free, Richard Stallman of MIT left his position
so that MIT wouldn't have a claim on his software creations. He coined
the term "copyleft," and founded the Free Software Foundation to promote
a UNIX-like operating system called GNU (pronounced Guh-NEW) using GNU/Linux
systems. [See the Open Source Definition at www.opensource.org/docs/definition
and the short version in the "Definitions" sidebar, page 66.]
The GNU movement
began for those who want to license, under copyright law, all or most of
their rights under the law. Then, through a license, they want to specify
those rights that users have for free, e.g., to use, copy, distribute to
friends, improve, etc., provided any secondary works are distributed
under the same (free) terms. GNU created the GPL, or General Public
License, to enable creators to enumerate the copyright rights that they
would willingly give up.
believes that software should be free — not without cost, but with certain
freedoms for users:
Free software is
a matter of the users' freedom to run, copy, distribute, study, change
and improve the software. More precisely, it refers to four kinds of freedom,
for the users of the software:
A program is free
software if users have all of these freedoms. Thus, you should be free
to redistribute copies, either with or without modifications, either gratis
or charging a fee for distribution, to anyone anywhere. Being free to do
these things means (among other things) that you do not have to ask or
pay for permission. The word "free'' above pertains to freedom, not price.
You may or may not pay a price to get GNU software. Either way, once you
have the software, you have three specific freedoms in using it. First,
the freedom to copy the program and give it away to your friends and co-workers;
second, the freedom to change the program as you wish, by having full access
to source code; third, the freedom to distribute an improved version and
thus help build the community. (If you redistribute GNU software, you may
charge a fee for the physical act of transferring a copy, or you may give
The freedom to run
the program, for any purpose (freedom 0).
The freedom to study
how the program works, and adapt it to your needs (freedom 1). Access to
the source code is a precondition for this.
The freedom to redistribute
copies so you can help your neighbor (freedom 2).
The freedom to improve
the program, and release your improvements to the public, so that the whole
community benefits. (freedom 3). Access to the source code is a precondition
The GNU Project
was conceived in 1983 as a way of bringing back the cooperative spirit
that prevailed in the computing community in earlier days—to make cooperation
possible once again by removing the obstacles to cooperation imposed by
the owners of proprietary software [see http://www.fsf.org].
"a copyright notice that permits unrestricted redistribution and modification,
provided that all copies and derivatives retain the same permissions."
The Open Source
movement began in order to create a free operating system for software
authors to build upon in creating and improving upon others' work. Linus
Torvalds, a Finnish student, put his Linux operating system into the public
domain. Recently many of the advocates of open source software have endorsed
the Digital Software Security Act, a proposed law in California that would
limit state agencies to purchasing only open source software, as opposed
to software with proprietary code or licenses that restrict the making
and distribution of copies of their software, such as Microsoft's. It will
probably be introduced by the time this article comes out. Other countries
are adopting similar measures requiring open source software programs in
So What Does All This Mean
These various groups,
trends, and movements all lead to the liberation of ideas, inventions,
software, writings, music, and other products based on open systems. If
ideas and information want to be free, then these movements are the future.
I will enumerate just a few of the movements to give you a taste of the
benefits, should any prove successful.
Through open source
software under the General Public License (see the Free Software Foundation
site at http://www.fsf.org/licenses/gpl/html),
software (including library automation software) can be purchased at a
reasonable cost, debugged, enhanced, and improved by an organization's
Linux-speaking staff, and shared freely with other entities. Users need
no longer wait for the licensing company to decide to enhance its product
and charge each customer for the upgrade. Similarly, the open source software
movement can be endlessly improved, expanded to other industries, and shared
by placing the improvements in the public domain. [See the free software
directory at http://www.gnu.org/directory/
for a list of the many open source programs available.]
provide another example of open source activity. In order to promote open
source software at conventions and computer shows, a Toronto company developed
an "opencola," distributed cans of the drink at the shows, and placed its
recipe on the Web [http://www.opencola.com/products//3_softdrink/formula.shtml].
The OpenCola Company has now become as well known for the cola drink as
for the open-source license!
and musical groups can choose to freely distribute their creations through
"copyleft" General Public Licenses (permitting duplication and distribution)
and open source agreements such as the Electronic Frontier Foundation's
Open Audio License. See http://www.eff.org
as The Budapest Open Access Initiative from the Open Society Institute
and Public Library of Science [http://www.publiclibraryofscience.org/]
support open access to scientific research literature. Watch as researchers
begin to reject the idea of placing their work in expensive journals, to
which few can afford to subscribe, in favor of publishing them in foundation
sponsored or otherwise free journals to which all libraries and individuals
can afford to subscribe, or place the work in an archive of articles [see
for open access journals] or preprints [see ArXiv of physics preprints
at http://www.arxiv.org] on the
Internet for all to read. The Budapest Open Access Initiative [http://www.soros.org/openaccess]
recommends these two complementary strategies:
In the field of fiction,
Douglas Rushkoff, syndicated columnist and NPR commentator, has convinced
a hard-copy publisher to print the novel, Exit Strategy, which he
had posted in its entirety as a free e-book on the Web in July. The author
encourages online annotations by readers. The publisher (Soft Skull) will
incorporate the readers' annotations accepted by the author in subsequent
printings — adding new annotations with each run. On the Web site [http://www.rushkoff.com/bull.html],
visitors can see the annotations the author chose to omit as well.
Scholars need to deposit their refereed journal articles in open electronic
archives conforming to the standards created by the Open Archives Initiative,
so that search engines and other tools can treat the separate archives
as one. Users then need not know which archives exist or where they are
located in order to find and make use of their contents.
Journals. Scholars need to launch a new generation of alternative journals
committed to open access, and to help existing journals that elect to make
the transition to open access. Since price is a barrier to access, the
Initiative's Web site elaborates on alternative sources of funding for
In education, MIT
has begun "to make the materials for nearly all its courses freely available
on the Internet over the next 10 years." OpenCourseWare, MIT president
Charles M. Vest announced, "will make it possible for faculty here and
elsewhere to concentrate even more on the actual process of teaching, on
the interactions between faculty and students that are the real core of
learning.... This is about something bigger than MIT. I hope other universities
will see us as educational leaders in this arena, and we very much hope
that OpenCourseWare will draw other universities to do the same. We would
be delighted if — over time — we have a World Wide Web of knowledge that
raises the quality of learning — and ultimately, the quality of life —
around the globe." [See the announcement at http://web.mit.edu/newsoffice/nr/2001/ocw.html.]
other collaborative works can be created and expanded, as evidenced by
Wikipedia, an open source encyclopedia [http://www.wikipedia.com],
which contains 20,000 articles to date. "People like the idea that knowledge
can and should be freely distributed and developed," according to Larry
Sanger, who created Wikipedia. He figures that over time, thousands of
dabblers should gradually fix any errors and fill in any gaps in the articles.
Even lawyers are
getting involved in throwing legal briefs on the Web for all comers to
make suggestions, improvements and additions, and help them refine legal
arguments. The OpenLaw movement began with the Eldred v. Ashcroft
case at the Berkman Center for Internet and Society at Harvard University
where lead counsel, Lawrence Lessig, was then on the faculty. Formerly
called Eldred v. Reno, the "case challenges the Sonny Bono Copyright
Term Extension Act—Congress's recent 20 year extension of the term of copyright
protection—on behalf of publishers and users of public domain works." The
Eldred v. Ashcroftdocuments can be found at http://www.eldred.cc.
The case is now before the Supreme Court, thanks in part to the many lawyers,
consumer advocates, law students, and professors who contributed to the
writing of the brief.
A second OpenLaw
case challenging the constitutionality of the Sonny Bono Copyright Term
Extension Act, Golan v. Ashcroft, has been filed, and as of this
writing, the government has filed a motion to dismiss and the plaintiffs
(conductors, musicians, and other artists) have replied.
Lessig, now a law professor at Stanford University, became chair of the
new Creative Commons organization [http://www.CreativeCommons.org].
In an article in the July 15, 2002 issue of Library Journal, Lessig
It is almost impossible
to identify content that you have the right to use as a creator without
licensing it from someone else. This is caused in part because copyrights
never end. But it's also because the United States gave up the very salutary
practice of requiring copyright owners to mark and register their work.
That means there is basically no way to know when you look at a work if
it is actually protected, or who you have to get permission from to use
that work. So we're developing technology to make it simple for creators
to mark their work and share it on the Internet — to say you can use my
work in the following ways, such as for noncommercial uses or with attribution."
The Creative Commons
organization is developing two Web-based tools:
I. For contributors,
a free license (created with checklists, drop-down windows and other assistance)
allowing the creator to legally define acceptable uses of a work — which
might include all of the copyright rights, or only one or two — without
II. For the public,
they are creating a search system so people can find works either entirely
in the public domain or available for a specific use with some restrictions.
More and more,
people and organizations are voluntarily sharing with each other. Through
the Open Source software movement using the Linux operating system, programs
can be duplicated to share with friends, enhanced, and improved. The "copyleft,"
counter copyright, and public license movements could lead to improved
access to music, arts, and literature as gifts from their creators. The
organizations to accomplish the awareness, access to, and standards for
locating and assessing these riches are coming into existence.
Many archive databases
of scientific articles available full text for free have begun to become
searchable on the Internet by anyone. Databases for creators and users
proposed by MIT and its collection of course materials or Copyright's Commons
at Harvard are also developing. Couple this with the contributions of music
creators, software programmers, and others adding their works to the public
domain entirely or with few restrictions.
It may be a little
more complicated to give away your creations today in the digital age,
and it still remains difficult to bring them to the attention of those
who may need or want them, but both goals are getting easier to reach thanks
to the diligent work of some nonprofit organizations. It will be interesting
to see these searchable archives and creation databases develop and to
see how many creators share the various rights in their works. Let us hope
that some of the information and database professionals reading this publication
will join in and work to share their insight and experience to make the
resulting systems elegant, efficient, and easy to use.
These are exciting
Berkman Center for Internet
"The Berkman Center
for Internet and Society at Harvard Law School is a research program founded
to explore cyberspace, share in its study, and help pioneer its development.
We represent a network of faculty, students, fellows, entrepreneurs, lawyers,
and virtual architects working to identify and engage the challenges and
opportunities of cyberspace."
is a coalition devoted to promoting a vibrant public domain. It is a group
of students, teachers, authors, filmmakers, archivists, publishers, and
other members of the public who believe in widespread access to creative
works. The group is located at the Berkman Center for Internet and Society
at Harvard Law School.
A nonprofit organization
that will develop ways for artists, writers, and others to easily designate
their work as freely shareable. The idea is to make it easier to place
material in the public domain. The first project is to design a set of
licenses stating the terms under which a given work can be copied and used
by others. The group was inspired in part by the free-software movement,
which has attracted thousands of computer programmers to contribute their
work to the public domain. Creative Commons ultimately plans to create
a "conservancy" for donations of valuable intellectual property whose owners
might opt for a tax break rather than selling it into private hands. [See
Center for the Public Domain
This group helped
fund Creative Commons with a major grant.
Electronic Frontier Foundation
Here is assembled
a selection of copylefts at http://www.eff.org/IP/Open_lilcenses/open_alternatives.html.
See also the "Unintended Consequences: Three Years under the DMCA" at the
EFF Web site, which explains the major cases handled: 2600 Magazine, Dmitry
Sklyarov, threats against Prof. Edward Felten's team of Princeton researchers,
etc. The article explores the unintended consequences of the Digital Millennium
Copyright Act (DMCA) relative to chilling free speech and scientific research
by journalists, publishers, scientists, students, programmers, and members
of the public. The Foundation believes that the DMCA also threatens fair
use rights and impedes competition and innovation.
The Free Software Foundation
pioneered the concept of free software, which led to the Open Source movement.
The tax exempt charity raises funds for work on the GNU Project. The Web
site provides a long directory of free software at http://www.fsf.org/listing.html.
The FSF notes that the "simplest way to make a program free is to put it
in the public domain uncopyrighted." [See http://prep.ai.mit.edu/copyleft/copyleft.html.]
But even that won't prevent someone down the line from making changes and
asserting their copyright rights to limit free distribution. So, rather
than placing the GNU software into the public domain, the organization
created the copyleft license. The GNU's General Public License gives users
permission to modify, copy, and distribute GNU software "conditioned on
the users' agreement to license all derivative versions under the same
This group seeks
to build better and free systems for use in libraries and maintains a listing
of free software and systems designed for libraries (the traditional books-on-shelves
kind). They also track news about project updates or related issues of
interest. It started in the Yale Medical Library in February 1999.
Public Library of Science
The Public Library
of Science is a nonprofit organization of scientists committed to making
the world's scientific and medical literature freely accessible to scientists
and to the public around the world, for the benefit of scientific progress,
education, and the public good. "We are working for the establishment of
international online public libraries of science that will archive and
distribute the complete contents of published scientific articles and foster
the development of new ways to search, interlink, and integrate the information
that is currently partitioned into millions of separate reports and segregated
into thousands of different journals, each with its own restrictions on
The Samuelson Law, Technology
and Public Policy Clinic
This clinic located
at Boalt Hall was the first in the country to provide law students with
the opportunity to represent the public interest in cases and matters on
the cutting-edge of high-technology law. Since January 2001, students participating
in the Clinic have worked with leading lawyers in nonprofit organizations,
government, private practice, and academia to represent clients on a broad
range of legal matters including Internet free speech and online and wireless
privacy. With the assistance of alumnus, Fish & Richardson Associate
Jason Schultz, and Professor Mark Lemley, the Clinic submitted an amicus
curiae brief to the Supreme Court of the United States on behalf of the
Internet Archive, Prelinger Archives and Project Gutenberg Literary Foundation
("The Archives") in support of Eric Eldred's challenge to the Copyright
Term Extension Act of 1998 ("CTEA") in Eldred v. Ashcroft.
Copyleft movement provides licenses for the distribution of software under
a General Public License (GNU-GPL) that allows users the opportunity to
reproduce and redistribute software programs so long as the author does
not make any restrictions on the distribution of the software to later
users. It is opposed to copyright, which protects the original author/creator
against unauthorized copying, redistribution of the software.
(cc): The counter-copyright sign (cc) [http://cyber.law.harvard.edu/cc/cc.html],
invites others to use and build upon a creative work. By encouraging the
widespread dissemination of such works, the counter-copyright campaign
fosters a rich public domain. The idea surrounding the counter-copyright
campaign is fairly easy to understand. If you place the [cc] icon at the
end of your work, you signal to others that you will allow them to use,
modify, edit, adapt, and redistribute the work that you created. The counter-copyright
is not a replacement for an actual copyright, rather it signals that you
as the creator will share your work. The counter-copyright strips away
the exclusivity that a copyright provides and allows others to use your
work as a source or a foundation for their own creative ideas. The counter-copyright
initiative is analogous to the idea of open source in the software context.
License: The Design Science License [dsl.org/copyleft/dsl.txt] is a
copyleft-style license that you can use to "copyleft" any work recognized
by copyright law. It is not a specialized license that only applies to
certain kinds of works or subject matter or only for the products of certain
organizations, but a comprehensive, generalized license that anyone can
use for any work recognized by copyright law. It also ensures that the
attribution integrity of a work stays in place. See http://www.dsl.org/copyleft.
The DSL license applies to "non-software information ... since any work
of any nature that can be copyrighted can be copylefted with the GNU-GPL"
Open Audio License:
OAL is a copyleft agreement originated by the Electronic Frontier Foundation
for musicians who consent to the free copying, reproduction, performance,
and reissuance of a particular song under this agreement, so long as the
copies, etc., are released under the same license. See http://www.eff.org.
For a registry of music available under OAL, see http://www.openmusicregistry.org.
Software: According to http://www.opensource.org,
"The basic idea behind open source is very simple: When programmers can
read, redistribute, and modify the source code for a piece of software,
the software evolves. People improve it, people adapt it, people fix bugs.
And this can happen at a speed that, if one is used to the slow pace of
conventional software development, seems astonishing." The Web site lists
and links to many types of open source licenses. Open source officially
means conformance to the Open Source Definition available at http://www.opensource.org/docs/definition.html
which provides (without annotations):
Open source doesn't
just mean access to the source code. The distribution terms of open-source
software must comply with the following criteria:
1. Free Redistribution.
The license shall not restrict any party from selling or giving away the
software as a component of an aggregate software distribution containing
programs from several different sources. The license shall not require
a royalty or other fee for such sale.
2. Source Code.
The program must include source code and must allow distribution in source
code as well as compiled form. Where some form of a product is not distributed
with source code, there must be a well-publicized means of obtaining the
source code for no more than a reasonable reproduction cost — preferably,
downloading via the Internet without charge. The source code must be the
preferred form in which a programmer would modify the program. Deliberately
obfuscated source code is not allowed. Intermediate forms such as the output
of a preprocessor or translator are not allowed.
3. Derived Works.
The license must allow modifications and derived work and must allow them
to be distributed under the same terms as the license of the original software.
of the Author's Source Code. The license may restrict source-code from
being distributed in modified form only if the license allows the
distribution of "patch files" with the source code for the purpose of modifying
the program at build time. The license must explicitly permit distribution
of software built from modified source code. The license may require derived
works to carry a different name or version number from the original software.
5. No Discrimination
Against Persons or Groups
The license must not discriminate against any person or group of persons.
6. No Discrimination
Against Fields of Endeavor. The license must not restrict anyone from
making use of the program in a specific field of endeavor. For example,
it may not restrict the program from being used in a business, or from
being used for genetic research.
of License. The rights attached to the program must apply to all to
whom the program is redistributed without the need for execution of an
additional license by those parties.
8. License Must
Not Be Specific to a Product. The rights attached to the program must
not depend on the program's being part of a particular software distribution.
If the program is extracted from that distribution and used or distributed
within the terms of the program's license, all parties to whom the program
is redistributed should have the same rights as those that are granted
in conjunction with the original software distribution.
9. The License
Must Not Restrict Other Software. The license must not place restrictions
on other software that is distributed along with the licensed software.
For example, the license must not insist that all other programs distributed
on the same medium must be open-source software
Billed as "the world's first 'open source' consumer product," this cola's
can asks that you "check out the source at opencola.com." There you will
find the formula to make the cola yourself — free! Anyone can make improvements
and other changes to the formula as long as they, too, release them to
the public domain.
A new online encyclopedia (named for the open source software program WikiWiki
that allows editing of Web documents) in which anyone can contribute or
edit an article on any topic. The developer, Larry Sanger, also created
the Nupedia encyclopedia that provides articles by academics and other
expert authors — but which has few articles to date. In describing Wikipedia,
Sanger noted that "over time, thousands of dabblers should gradually fix
any errors and fill in any gaps in the articles.... Wikipedia [http://www.wikipedia.com]
is a collaborative project to produce a complete encyclopedia from scratch.
We started in January 2001 and already have about 30,000 articles. We want
to make over 100,000, so let's get to work — with few exceptions, anyone
can edit any article — copyedit, expand an article, write a little, write
a lot. The content of Wikipedia is covered by the GNU Free Documentation
License, which means that it is free and will remain so forever."
"Protecting Intellectual Property," New York Times (February 18,
2002) at http://www.nytimes.com/2002/02/18/technol
"Open Source, Open Standards; Library Services and the Internet," Information
Technology and Libraries (March 1, 2002).
"The Great Giveaway," NewScientist.com at http://www.newscientist.com/hottopics/copyleft/copyleftart.jsp.
This article has the distinction of being apparently the first article
distributed under a copyleft license by including the proviso: "THE INFORMATION
IN THIS ARTICLE IS FREE. It may be copied, distributed and/or modified
under the conditions set down in the Design Science License published by
Michael Stutz at http://dsl.org/copyleft/dsl.txt."