Eben Moglen, Lawrence Lessig

“ So when we were thinking about how to architect Creative Commons, this was the core problem that we had to struggle with, and our solution was to say: “We should recognize there are basically three different audiences that we’re speaking to.” One audience is the people who are not lawyers, and so that’s why we have the commons deed that tries to express the freedoms associated with the content. ”

“ Microsoft’s equivalent, you know, attempt at a copyleft license and their other, quote, “open source” licenses, basically says “You can relicense under this or an equivalent license.”. That basically allows anybody to decide what the equivalent license is, and there’ll be courts that argue about what the equivalent license is, and so there would be a struggle about that.
The alternative is to imagine a trusted institution – this is a little bit counter to the kind of Hayekian view that I’ve just been espousing, but – a trusted institution that begins to create lists of equivalence. ”

“ There’s a lot more to do these days to protect freedom, because it is spread more far, and there is more worry about it. All of this may, however, be more true about executable code than about works of other forms of authorship. That is to say, protecting the freedom of free software and protecting the freedom of free literature and protecting the freedom of free photographic images may be different jobs with a different quantum level of intensity to deal with. ”

“ Maybe we do want to interpenetrate free and non‐free work in order to use the proprietary infrastructure to advertise free culture by giving some to people who aren’t yet accustomed to looking in the free places. ”

“ But I think that’s why it’s so great that we’re having this conversation here, because I think of all the institutions of free culture that has demonstrated the ethic in giving up on that instinct. It’s what the Wikipedia project has done, right? The ethic of a wikipedian is: You write things licensed in a way that guarantees you don’t control what’s going to happen to it. And, I mean, that’s a very important ethic that we all should learn from, and it took a little bit of beating in a subtle way from Jimbo before I got that, but I think I believe that now. ”

“ It’s a tiny Internet that supports the perfectly efficient iTunes model of how you get access to culture. It’s a huge Internet that’s got to facilitate my ability to send my 50 megabit film of my kid from this week to all ten thousand of my friends that I want to see it, right? ”

“ One is because the license they’re moving to is a better license, and the other is because the license they’re moving to is less restrictive for whatever it is they want to do. And if you can remove licenses that are protective downstream, there is always the risk of a race to the bottom. So the guys who concern themselves with protectiveness will not let go of branch A until branch B is shown to be equally protective. And this is why that process of making equivalence is so complicated, because I think the likelihood of failure is part of the process by which equivalence is measured. ”

“ Ask how you respond to the problem presented by occasional license failure in order to decide for yourselves how much protectiveness you want. Having decided how much protectiveness you want, you’re in a position to think better about the question “Where will I trade protection for facilitation?”. That’s a social policy decision. I think Larry is correct in saying that the wiki model of making that decision is a better model than the model of votes, kingship, and all the rest. ”

“ If you’re worried about defectors internally, that is, people saying “No, no, you’re infringing my copyright because I never gave permission for that composite of license terms to apply to my work”, then you have to worry, because that system is vulnerable to internal dissent. How you estimate the importance of internal dissent goes back to a question I was asking this morning: “Do internal dissenters have moral rights in their work? ”

“ Now, once again, it may be that the cost of failure is not as high, and so in that usual lawyer’s calculus of the risk of erroneous action and the cost of deprivation and the cost of getting a right answer, that it may be OK to let go of more branches earlier. That’s a question to be resolved by you based on what you think the risk is implicit in your own license failure. ”

“ Now the bad news for us on this side is, the free culture problem presents to publishers a difficulty which doesn’t depend on which license it is, it doesn’t depend on how well the licenses work. As Larry pointed out to you with respect to our experiment in Eldred and with respect to everything that has followed from it, The real threat to commercial culture is the mere size of the public domain all by itself. ”

“ The market that’s supported by the read‐only Internet is a tiny market. compared to the market that could be supported by the read‐write Internet. There are huge interests who would win from a much more reasonable balance of copyright laws here. Huge set of interest, you know, from computer manufacturers, to bandwidth sellers, to software people, to all sorts of people who want to have to sell faster, better, systems, to support this creativity. ”

“ Make the only layer the abstractive layer, and try and use the same one everywhere. Note that the very task we’re trying to perform with respect to content licenses is equivalent to that problem of the globalization of any license, whether it covers executable code or it covers free culture. We’re going to see, in the next few years, a series of licenses that do a job like the one Larry is talking about, for code only. ”

“ In other words, how to stimulate organs of local government to see past the ends of their own noses about the broad issues of information freedom and access. Those are the people we’re going to need ten years from now, and we’re not going to be able to educate them ten years from now. ”

“ We narrowly missed that opportunity, and I think one of the reasons that we missed it, to be perfectly clear about it, is that we already weren’t clear how far the Creative Commons’ breadth of licensing inventory was within the range of things we were trying to achieve interoperation with. Stallman’s protectiveness of the GFDL is a fact of life, he’s protective of the license as he’s protective of his other licenses, and there’s a reason; ’cause he emphasizes protection of freedom all the time, and it’s always OK with him to add another layer of acetate to the bulletproof vest. ”

“ Terry Bollinger as the author, a few years back, of the MITRE report on DoD use of Free and Open Source software.
It’s more a comment. The most success... The biggest success in interoperability, as Larry Lessig pointed out is an important goal here, is XML. XML does not take the strategy of defining a single fixed strategy, it captures the key fundamental ideas, puts them into one package and lets people build on top, then, whatever fashion they do. ”

“ The goal is to prevent people from taking free material and incorporating it in unfree contexts in such a way as to reproprietize what has been freely chosen. And accordingly, when Stallman set himself to the free culture problem – defining culture fairly narrowly as technical reference manuals at the first go round – we got a license in the GNU Free Document License which was equally intensively committed to protecting as to facilitating. ”

“ Imagine that airport book shop selling commercial novels written by robots for reading on the red‐eye, if right next to it there’s a guy with Brewster’s bookmobile, reduced to hand cart size, so that Anna Karenina for a dollar competes against everything in the proprietary book shop at $15.95 every time you’re about to catch an airplane. ”

“ Which it why, though he didn’t say it to you, governments are so damn resistant to mapping and publishing the metes and bounds of the public domain for their citizens, because proprietary culture will, in the 21st century, compete against free culture everywhere all the time, in a physical sense. ”

“ Have you guys considered, instead of coming out version of version after license – which is a very proprietary approach if you think about it, it’s exactly what we did before XML – give a toolkit in which you capture those fundamental thoughts you want, make sure they’re absolutely airtight, can’t get around them, and then people can compose to their local needs on top of that? We... If we keep doing versioning, it’s never going to end, derivatives will go on forever. We need a toolkit, you guys could do a toolkit. ”

“ It is also true that this question of license interoperation has come up and been discussed because Larry forced it onto the agenda, and I think it is a powerful and important plea that he’s making. There are a couple of things to say about licenses that he didn’t say, though I think I ought to start by endorsing his proposition that the best license in this area is a largely invisible license. That is to say that it is the job of the legal technology to get out of the way and to allow creation to occur. ”

“ If it’s also under a CC license, then what we’re talking about is dual licensing. So then we create a world where we have FDL content and CC’d content, and then a new world where we have FDL and CC’d content. And then those two, that sort of amalgamation of dual licensed content, whenever it’s used again, needs to continue to have that dual licensing structure all the way down. ”

“ But the second audience is lawyers and potential judges. And those lawyers and potential judges in different jurisdictions are not likely, anytime soon, to adopt a methodology that says “We have machines to pull together things and they function in the way the people want them to function.”, because, again, it’s humans ultimately, interpreting these licenses, not machines such as computers. ”

“ We, on the other hand, can not afford to sit and write tightly crafted copyleft licenses that say “In order to protect freedom you may distribute derivative works under this license only.”, because as Larry has pointed out, that natural, simple, straightforward way of making a protective copyleft imposes autism in the license arena that we cannot long afford. ”

“ So we need good, strong, flexible copyleft, we need social and political context for protecting the works more, because as we attempt to increase flexibility and facilitation we will inevitably make some compromises on protectiveness, and we’re going to have to think those things through with the slightest possible tinge of Not Invented Here. ”

“ And unless governments believe with us that the licenses we are making and the modifications to copyright law that we are instituting are valuable to citizens and should be defended against rent seekers, the rent seekers will have a powerful response. ”