Who Owns Free Culture?

The previous year saw far too much fighting over who gets to define and control the term free culture. The biggest problem, in my opinion, is that these fights conflate a very important discussion about the goals of a set of nascent social movements — or the lack thereof — with much less important issues of semantics, definitions, and control over terms. The term is being used in a way that describes a whole lot of projects I support and participate in fully — and a few I don’t. And I think that’s OK.

When Erik Möller and I launched the Free Cultural Works Definition (at the time, the Free Content and Expression Definition), we struggled to find a good term for the works that we wanted to liberate. We thought about using the terms content, expression, knowledge, information, art, data and communication but each word seemed to exclude an important body of works or producers. Few musicians we knew thought of their productions as "content" while few encyclopedia writers did not.

The term we liked most was culture: it defines a very broad set of practice and has very positive connotations. Of course, others had already been using the term free culture so we spent some reading up on the term and talking to the people most closely associated with it. Originally, the term seems to have its roots in the book Free Culture by Lawrence Lessig. I reread the book to get an idea for exactly what Lessig meant when he used the term but, upon reaching the end, I found myself without a good answer. The book’s index included a promising entry for "Free culture, defined" which pointed to a short section in the preface:

A free culture is not a culture without property; it is not a culture in which artists don’t get paid. A culture without property, or in which creators can’t get paid is anarchy, not freedom. Anarchy is not what I advance here.

Instead, the free culture that I defend in this book is a balance between anarchy and control. (emphasis mine)

Framed by a negative definition of what free culture is not, Lessig’s definition describes the broad space between two unattainable extremes. This resulting ambiguity is fully intended: Lessig has not only spoken out against my particular suggestion but against any definition and the process of offering ex cathedra definitions or goals altogether [1].

In personal conversations about our definition, Lessig was initially very supportive. In fact, it was Lessig who introduced Erik and I to each other and suggested that we work together. What Lessig did disagree with us on however, was calling the definition the Free Culture Definition. I think that Lessig felt some sense of ownership of the term and felt that he and others had defined it and been using it in a way that was broader and incompatible with the definition we were proposing and with any definition of the type of we were suggesting.

Early on, Lessig blessed a group of students to create a Free Culture student movement. Most active now in Harvard Free Culture and Free Culture NYU and but in a handful of other places as well, these groups have been involved in everything from the promotion of transgressive approaches to IP, to speech bubbles, to anti-DRM work, to protecting the right of cereal restaurants to operate. When Erik and I suggested to this group that they might benefit from adopting the Free Cultural Works Definition as a set of explicit ideals or goals for their movement, the larger part of the coalition soundly rejected the idea. Like Lessig, they wanted free culture to refer to wide variety of projects and did not feel good about describing any work by sympathetic parties as "non-ideal."

Erik and I were faced with two choices: we could call our definition the Free Culture Definition and in effect engage in a power struggle with Lessig and with some portion of the free culture student movement or we could pick another term. While we don’t like the alternatives as much as free culture, we didn’t have a lot of trouble deciding that going with a term like free cultural work or free content and expression was the better choice.

This is why I am a little worried about the recently announced UK-based Free Culture Foundation. I have nothing but respect for the founders (Matt Lee, Tom Chance, and Rob Myers) and trust them to create the type of free culture organization that I would like to see. I am very much looking forward to working closely with them on this project in the future. They seem likely to choose a set of goals and adopt a set of strategies in line with the ones I’ve argued for. But in that my goals and strategies have run into opposition among many of the most visible people using the term free culture in the past, that’s also why I’m a little worried.

SJ Klein and I were recently saying that its time to start naming organizations and projects in this area using only words in dead languages. That way, we can side-step the (unimportant) semantic arguments over who gets to control existing terms and focus on the real goal of building stronger social movements, setting goals that sound as unthreatening to each other as they actually are, and building better tools. Without semantic arguments in our way, we’ll be able stronger to build coalitions and work together in all the ways we should be.


This is an important distinction because it is also possible to disagree with the first fully articulated definition but also feel that offering another set of goals — for example, a set that allowed for commercial use or anything under current CC licenses — was productive.

After all, I have been arguing for much longer in favor of any set of goals much longer and more strenuously than I have argued for any particular set of goals and I still feel that a set goals is much more important than any paritcular one.

Author: Benjamin Mako Hill

Rebel with rather too many causes. And your host!

5 thoughts on “Who Owns Free Culture?”

  1. I noticed one interesting subtlety in Lessig’s arguments against establishing standards of freedom.  Ignoring the narrower point about needing to have a debate about non-commercial licenses in so-called new communities of people, his primary argument seems to revolve entirely around the issue you’ve suggested, namely that we shouldn’t “exclude” people who supposedly have similar ideas because they differ on “details”.  He makes the argument that by doing so we fall prey to infighting, and that we should present a unified front.  However, in doing so, he subtly reinforces his own viewpoint: that we should have no standards at all, and just let people use whatever licenses they want and call them free because they go in vaguely similar directions.  By refusing to take a stand, we end up taking his stand, discarding any notion of freedoms altogether.

    He wants to win a larger battle on copyright, which I would love to see happen, but because he has set this as his primary goal, he refuses to ever say “no, we don’t want your work here if you don’t follow our standards”.  He refuses to exclude anyone who loosens their stance in even the most token of ways, by saying “not good enough, not part of our community”.

    The clauses that disturb me the most in the Creative Commons set don’t just include the non-commercial clauses.  The fact that a work which allows no derivative works can call itself part of a “commons” seems absolutely insane; that truly exemplifies how I feel Creative Commons has cheapened the idea of freedom.  If you can’t build upon a work to create something new, and can only copy it verbatim, that defines so-called “free-riding” in every way.  What good does the ability to copy do if you can’t create?  Yet a full quarter of Creative Commons works use the no-derivatives clause.  Worse yet, 5 out of every 8 works use the non-commercial clause.

    I always like to think about each new license in terms of what would happen if that license carried the day.  I tend to agree with strongly with the copyleft arguments: I would feel happiest if the GPL (v2) carried the day, and all works inherently supported the creation of new derived content as long as you followed the same rules.  But would I feel upset if the MIT license carried the day?  Not in the slightest!  Or public domain, with copyright disappearing altogether?  I’d feel overjoyed?  Similarly, ignoring minor details, I’d love to see CC-by or CC-by-sa everywhere; that would make for a great culture.  But on the other hand, what happens if we “win”, as Lessig suggests, but “we” do it on the backs of licenses like CC-by-nd, or CC-by-sa-nc?  CC-by-nd creates exactly the kind of read-only culture Lessig mentioned, one where you can make new works, but you can’t build on any of the existing culture, and thus you can barely create at all.  CC-by-sa-nc creates the same atmosphere the moment money enters the picture.  Want to share a song?  Sure, but you better not have ads on your site.  Want to use a picture in your article?  Sure, but you better not publish that article anywhere which pays you.  It creates a world where the moment you want to make money, you have to go through the same rights-clearing nonsense that strangles creativity; thus, you create a gulf between the people who can’t make money on content at all, and those who have enough money to play the game, with no room for bit players.  And that doesn’t even go into total insanity like the Sampling or Developing Nations licenses.

  2. Larry once dismissed any suggestion of using a social movement route to achieving change in the copyright field – he thought such ideas were hippy nonsense spouted by people who didn’t understand what decade they were in.

    Then his legalistic approach left him in front of the Supreme Court wearing what turned out to be his birthday suit, and he lost large. Now he’s in popular front mode, and making fun of those who want more precision as if we’re lunatics from the Life of Brian. But who has a record of hopeless naivety?

    This cavalier attitude towards language is infuriating; basically freeriding in the case of ‘free culture’, and  misrepresentation in that of ‘creative commons’: what commons in history forbade drawing material sustentance from it?

    James is right: boxing off ‘creating’ and ‘getting paid’ replicates the distinctions between the professionals and the hobbyists/aristocrats, ignoring the wide swathe of people who exist in between, depending on micro-payments, complementary sales etc,

    The crux is that this is noot just a poissing contest over language between pedants; there are divergent objectives, and the ‘one happy family’ nonsense needs jettisoning.

    Is the goal to transform the economics of cultural software, our ability to sustain ourselves materially and intervene on the symbols/ meanings that surround us?

    Or is it to gather large amounts of empirical data under a brand, so the next time the constituted authorities are faced with a replay of Eldred or Sony, they’ll lean the right way. And in the process the licenses socialize millions who previously <u>ignored </u> copyright altogether as to its ‘value’?

    Larry has done fantastic work as a popular educator, he has succeeded in inspiring a million conversations – but his political judgment is poor .

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