Vol. 10 No. 10 — Nov/Dec 2002 
Just Can't Hardly Give It Away: Generosity Versus Copyright
by Carol Ebbinghouse Library Director, Western State University College of Law
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It 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.

Web Sites

Copyright's Commons: Counter-Copyright

Electronic Frontier Foundation

Free Art License (French)

General Public License (GNU)

Linart (more free art)

Artists using Linux and Open Source software

Open Content License

OpenLaw (Berkman Center)

Open Music License

Open Music Registry (Open Audio 
licensed music)

Open Source

Project Gutenberg's public domain texts

Wikipedia: The Free Encyclopedia

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 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.

Richard Stallman 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: 

  • 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 for this. 
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 away copies.) 

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].

"Copyleft" means "a copyright notice that permits unrestricted redistribution and modification, provided that all copies and derivatives retain the same permissions." [See] 

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 government contracts. 

So What Does All This Mean to You?

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, 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 for a list of the many open source programs available.]

Consumer products 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 []. The OpenCola Company has now become as well known for the cola drink as for the open-source license!

Authors, composers, 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 and

Movements such as The Budapest Open Access Initiative from the Open Society Institute [] and Public Library of Science [] 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] on the Internet for all to read. The Budapest Open Access Initiative [] recommends these two complementary strategies: 

  • I. Self-Archiving. 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.  
  • II. Alternative 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 these journals. 
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 [], visitors can see the annotations the author chose to omit as well. 

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]

Encyclopedias and other collaborative works can be created and expanded, as evidenced by Wikipedia, an open source encyclopedia [], 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 [see], 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 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. 

Recently Lawrence Lessig, now a law professor at Stanford University, became chair of the new Creative Commons organization []. In an article in the July 15, 2002 issue of Library Journal, Lessig noted:

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 a lawyer.  
  • 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 times.

Berkman Center for Internet and Society

"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."

Copyright's Commons

Copyright's Commons 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. 

Creative Commons:

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 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

This organization 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 The FSF notes that the "simplest way to make a program free is to put it in the public domain uncopyrighted." [See] 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 terms." 


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 access." 

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: The 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. 

Counter Copyright (cc): The counter-copyright sign (cc) [], 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. 

Design Science License: The Design Science License [] 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 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 For a registry of music available under OAL, see

Open Source Software: According to, "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 which provides (without annotations):

The Open Source Definition


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.

4. Integrity 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.

7. Distribution 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


OpenCola. Billed as "the world's first 'open source' consumer product," this cola's can asks that you "check out the source at" 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. 

Wikipedia. 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 [] 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." 

Reading List

Sarah Milstein, "Protecting Intellectual Property," New York Times (February 18, 2002) at

Karen Coyle, "Open Source, Open Standards; Library Services and the Internet," Information Technology and Libraries (March 1, 2002). 

Graham Lawton, "The Great Giveaway," at 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"

Carol Ebbinghouse's e-mail address is
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