By Monika Ermert for Intellectual Property Watch
BERLIN – A debate is ongoing between “open source” (OS) software developers and devotees to Creative Commons licenses over the right way to promote free culture. Creative Commons licenses, under which some rights are reserved, are too restrictive for some in the OS community.

“When I look at the free culture movement I am very worried,” said Debian programmer and Massachusetts Institute of Technology (MIT) Lab researcher Benjamin Mako Hill at the Wizards of OS 4 (WOS) conference in Berlin last week, a major event of the open source community.

Two-thirds of works distributed under Creative Commons licenses are registered under its two most restrictive licenses, and “there has not been a shift towards more free works,” said Hill. He added that WOS participants saw a need for a definition of freedom and he is working on it together with other OSS developers.

The definition will adapt the four freedoms that the free software community has declared fundamental for the digital content realm. No work, reads a draft version of this definition, “can be truly called ‘free’ unless it can be freely shared, freely modified, freely aggregated, freely combined, and freely provided through any channel. Works under licenses that prohibit these essential freedoms stand separate from the body of works that is not impeded by these restrictions. They are philosophically and legally incompatible with the licensing options used by the growing movement that refers to its works as ‘free content’ or ‘free expression.’”

Stallman v. Lessig?

The discussion about the meaning of “free” in free content, or even more broadly, free culture, is portrayed by some as a difference of opinion between the guru of the Free Software Foundation, Richard Stallman, and the guru of the Creative Commons movement, Stanford University Law Professor Lawrence Lessig.

“There was nothing more depressing in my Creative Commons life than the decision of Richard Stallman that he would not recommend the use of Creative Commons licenses,” Lessig told an audience in Berlin.

Since the start of the Creative Commons project, licensing numbers have risen to several million in over 30 countries worldwide. Stallman is father of the Free Software Foundation (FSF) and author of the FSF fundamental freedoms and the GNU General Public License. According to observers, he has been especially critical of two of the Creative Commons licenses – the developing world license and the remix license. Neither license allows copying by everyone, limiting it to developing countries and for remixing music (but not copying the original music), respectively.

Lessig, who said he approves of healthy debate, said that while the software community had had their discussion of what they saw as freedoms, other communities might have different needs. “We ought to be open to the process of discovering what freedom means to them,” he said. “No one can dictate this to any of these communities,” such as musicians, filmmakers or architects. Lessig also said he sees Creative Commons as perhaps a stepping stone to reform of copyright law.

Lessig said he would prefer “to radically reform copyright,” but that “we only change it when a huge part of the people say that there is a problem.” The goal of the Creative Commons project was to stipulate discussion against the current “copyright extremism” of the protective Hollywood model. In his keynote speech at the WOS, Lessig portrayed the 20th century as a restrictive, “read-only” century that had crippled the read-and-write possibilities of people and had to be overcome during the 21th century.

Differences Downplayed

“The conflict between the FSF and the Creative Commons has been overemphasized,” said Georg Greve, president of the Free Software Foundation Europe. While he said he also felt some “mulligrubs” about the developing country license – because it was unfair to give a special right per country instead of thinking of people with no access to knowledge in general – “we are at one in 90 percent of all cases.”

Greve said he saw the Creative Commons contribution in the ongoing dialogue about which freedoms are necessary. “It’s like a chemical construction kit for freedom, that allows people from different communities to experiment, mix and adjust what they think is necessary.”

One other community intensively discussing a possible adoption of the open source model is the biotechnology community. In that field, one cannot afford to ask for free – in the sense of no cost – sharing of knowledge, but must instead concentrate more on alternatives to finance drug development for poor countries where patents are not an incentive to invest in research.

The future digital music market also was discussed intensively at the Wizard of OS. Peter Jenner, the former manager of rock band Pink Floyd and general secretary of the International Music Managers’ Forum, said the idea to “hippily, happily, hoppily share” without remuneration for the artist was impossible. “That everything can just be free is nonsense,” he said. Jenner said he favoured a blanket license for 5 or 6 US dollars a month with everybody in the chain of the music industry having to “justify his right of existence.”

A one-size-fits all model on what is freedom is not possible, said Greve, and other communities should be given the time to discuss their norms in the same way as the software community. He said: “It’s only that these other communities still might be caterpillars, while the free software community already is a butterfly.”

Monika Ermert may be reached at info@ip-watch.ch.