In this part of the thesis, previously introduced concepts in the Theoretical Resources section are applied to recognize the role transnational processes played in the founding and rapid proliferation of Creative Commons’ copyright licenses as the standard method to electronically published cultural goods in an ‘information commons.’ Of particular interest is the way Creative Commons came to intersect a pre-existing homogenous lawyer community dedicated to free and open source software issues and an interrelated transnational socio-political movement for cultural environmentalism. Understanding Creative Commons’ development within the inversion genre of hacker tactics must be established before it is possible to address the overarching goal of thesis which argues that Creative Commons and Pirate Parties of Sweden and Germany exemplify a flexible form of transnational cohabitation in the movement for cultural environmentalism.
The founding of Creative Commons was a direct response to the dual approach of IP regulation taken by copyright industries in the 1996 WIPO Treaty and the 1998 Sonny Bono Copyright Term Extension Act. After the original arguments of the Eldred v. Ashcroft case submitted to the District Court were rejected in October 1999, the plaintiffs appealed the decision and lost again in the appeals circuit hearing in February 2001. The plaintiffs filed for another petition to the Supreme Court in October 2001; however, Lawrence Lessig, Hal Abelson, and Eric Eldred has received funds from the Center for the Public Domain to found an organization they called Creative Commons in 2001 as an official non-governmental legal project that tasked itself to construct a private and flexible system of copyright protection in the image of the Free Software Foundation’s copyleft principles.
It can be said then, that Creative Commons was founded by a “network of professionals with expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area,” quoting Haas’ (1992) definition of a transnational epistemic community. The network of US lawyers shared normative and causal beliefs that led to social action and evoked collective notions of validity in the legal domain. In its founding, the composition of the community behind Creative Commons did not change, as its main task to develop a flexible system of copyright licenses mainly required legal expertise. In personal interviews with Mike Linksvayer, Vice President of Creative Commons, this notion was echoed:
“Creative Commons is very conservative organizationally, including its worldwide affiliates, who are mostly lawyers.”
Dobusch and Quack (2011) highlight three important factors necessary in understanding the momentum Creative Commons gained in only five years to become the standardized license for works of open media. The first factor is concerning how the organization expanded by porting its licenses to national jurisdictions rather than disseminating a single global license such as the Free Software Foundation’s GPL. License localization allowed Creative Commons to appoint ‘project leads’ and enter into memorandums of understanding with affiliates throughout the world. Early on, this resulted in the Creative Commons absorbing other legal experts sharing the same epistemic network of F/OSS legal knowledge and shared a willingness to address complicated legal nuances such as moral rights in the context of a non-governmental organization. This strategy led to the second important factor, which was a direct consequence of the first. After the period of 2003-2005, when license localization was mainly the product of Creative Commons’ absorption of homogenous pre-existing F/OSS legal communities outside the US into the mission of the organization’s epistemic community, rapid license localization began to attract a different type of project lead and national partner institution type. This highlights the importance of a pre-existing epistemic community, with experience in the hacker genre of inversion that greatly accelerated the speed of the organization’s porting efforts. In seven of the first ten countries to “port” the license at least one of the Creative Commons’ affiliate organizations had a strong technological background and experience in the prior movement of the free/open source software licensing (Dobusch and Quack: 20). For instance, in Finland, the second country to port the licenses the project was undertaken by lawyers at the Helsinki Institute of Technology. But as national affiliates of the Creative Commons program went from only 25 jurisdictions in 2005 to 43 in 2007, the rapid expansion of the license began to attract a different type of project lead and organization partner. Where legal institutions and experts in fields of F/OSS represented about 74 percent of the early adoption phase, the majority of later license adopters between 2005 and 2007 were NGOs, whose representation climbed to 60 percent of all localization efforts.
This shifting type of community responsible for localization positioned Creative Commons at the intersection of an international but epistemic and homogenous legal community with an inter-related, but diverse socio-political movement for “cultural environmentalism.” For example, many of the later jurisdictions to adopt the license did so through national institutions concerned with particular artistic areas such as Poland’s focus on video and film, while Germany became the fourth jurisdiction to port the license, by coordinating with the national Institute for Legal Issues on Free and Open Source Software. These two communities, F/OSS legal experts and cultural environmentalists, contributed to the rapid success of Creative Commons because it is difficult to draw exact borderlines of membership between the two groups as individuals rarely belong to just one. The struggle to respond to this development is documented well on the Creative Commons mailing list, one of the most important mechanisms for disseminating information throughout the community:
One Creative Commons member explained that:
“We … must overcome the problem that many activists try to exploit the ideas behind CC for some random political anti something agenda … To make CC a long term success it is absolutely crucial to stay neutral in relation to ideologies of any kind” (http://lists.ibiblio.org/ pipermail/icommons/Week-of-Mon-20070528/000271.html).
One author, copyright reformist, and recent Pirate Party supporter, involved in the early development of Creative Commons was Cory Doctorow who referred explicitly to problem of Creative Commons as both an organization and social movement on the mailing list:
“The difference between a movement and an organization is that an organization is a group of people who want the same thing for the same reason. A movement is a collection of groups of people who want the same thing for different reasons. Movements are infinitely more powerful than organizations. … [T]here are Marxists, anarchists, Ayn Rand objectivists, economists, artists, free marketeers, libertarians, liberal democrats, etc. who see copyright liberalization as serving their agenda. If we insist that copyright reform is about copyright reform and nothing else, there will be no copyright reform movement” (http://lists.ibiblio.org/pipermail/icommons/ Week-of-Mon20070528/000273.html).
Creative Commons was never completely independent from activist projects- as demonstrated in the organization’s connection to the “Eldred v. Ashcroft” Supreme Court case. However, the fact of the matter was that Creative Commons was meant to facilitate and achieve legal actions, which made the organization structures of a transnational epistemic community ill equipped to navigate the conflicting ‘discourses’ caused by the increasing amount of diverse activists surrounding Creative Commons. As a response to a mounting problem, Creative Commons differentiated the roles of ‘legal’ and ‘public’ project leaders. Legal project leads would continue to offer their legal expertise while ‘project’ leaders assumed the responsibility for “community work” which included event organization, license marketing, and networking among users and groups. Lessig explained the organizational shift between the legal and activist part of the community as follows:
“We wanted to make it clear that there were two things going on. One was the building of an infrastructure, which enabled people to deploy rights in a more flexible way. And the second was any activism there might be around changing copyright laws or attacking digital rights management or something like that. We didn’t want those two activities to merge too closely” (Dobusch and Quack: 30).