Wikimedia Quarto/2/Interview/De De

Interview: Lawrence Lessig

Quarto spürte Lawrence Lessig, Jura-Professor in Stanford, Gründer und Vorsitzender der Creative Commons und freier „Kulturschmied“, in einer ruhigen Minute am Ende eines langen Dezembertags auf. Kurz und bündig sprach er mit uns über Copyright, Copyleft, die Hürden für eine „freie Kultur“, rechtliche Stolpersteine für die Wikipedia und über den Kampf für die gerechte Sache.

Collective Works und die Copyright Hürde

Eine der häufigsten Fragen, die Wikipedia Benutzer über Copyright stellen: Wie wird ihre aktuele Arbeit wiederverwertet werden?; Welche sind die größten Langzeit-Risiken beim Wiedergebrauch von collective content?; Und was können wir jetzt tun, um dieses Risiken abzubauen?

LL: The greatest long-term risk would be a series of legal decisions that throw into doubt, the ability of the project to rely on the collective assignment [of] rights. And, I think the way you deal with that is to figure out the FDL structure that best facilitates that collective assignment of rights. I know there are projects and study groups that think about that.

How did you conceive of the idea for the Creative Commons?

LL: We recognized how the internet and the way the law's structure was going to interact... in a way that would presumptively make a whole pile of material unavailable, when the intent of the copyright owner or the intent of society should be to make it available. So, we were trying to be creative about how to solve this legal problem produced by the unintended consequences of the way the law was architected.

Als die Wikipedia gestartet wurde, gab es die Creative Commons Lizenz noch nicht. Konnte man schon damals erkennen, dass man neuartige Lizenzen brauchen wird?

LL: The objective of copyright law is primarily to help creators do what they want to do. I think it was obvious that the default way copyright law functioned would not encourage enterprises like Wikipedia, but that you could supplement copyright law with licenses the [same] way Richard Stallman tried to supplement software copyright law. I don't think it was an indictment of copyright law that its default mechanism didn't facilitate this amazing new capacity.

But, enterprises like Wikipedia strain copyright law, certainly. It is hard to express the understandings of the people participating in the construction of this creative work, and nobody understands how the work will develop and change.

For example, in Germany, a copyright owner can't sign away rights to technologies that don't exist. In the US, we have clauses like, "I'm signing away my rights to all technologies now known or ever to be discovered..."; this is not possible in Germany. On the one hand, that's a good thing; because you have to go back to the author to get permission for some new use, something of great value to the author.

But, in the context of Wikipedia, if you have to go back to clear rights for every new technology that comes along, part of the objective of the authors is defeated. So, there's a need for copyright law to reflect this. There's no reason, in principle, that it can't, so long as we move to reasonable or balanced discussion about copyright law, as opposed to the extremist views that dominate the debate right now.

Copyleft, Trademarks und freie Kultur

Is the growth of the copyleft movement another force advocating for permanent extensions to copyright law?

LL: That is an interesting consequence of copyleft. In a theoretical sense it is quite important... because the side of freedom seems to benefit from the side promoting control.

There's another sense in which that paradox is always going to be part of the copyleft movement. I described [elsewhere] how there is this radical change in the scope of copyright law effected by moving to a digital network. It's only because of this radical change in the scope of copyright law that projects like Creative Commons can get going. You wouldn't be able to attach a Creative Commons statement to a book in realspace, and say, "if you read this book, you have to do it Share-and-Share-Alike," and expect it to have legal force -- the only way that *could* have force, is if there was a contract entered into every time you opened a book, and there's no grounds to believe that.

But, because on a digital network every use of a creative work produces a copy, there is a foundation upon which to insist on a license every time you use the work; that's where the Creative Commons license gets its power.

So on the one hand, many of us are very skeptical about this explosion of copyright regulation. But on the other hand, we take advantage of it in Creative Commons. [laughs]

Mit Lizenzen wie Creative Commons/GFDL bauen wir einige Copyright-Hürden ab. Denken Sie, dass es andere Hürden gibt für den Wachstum der freien Kultur? Von Rechtsseite oder in der Kultur an sich?

LL: All of the problems that exist for free software will increasingly be problems for free culture. The most prominent is software patents, which will increase the coordination costs of software development projects in a way that favors proprietary projects.

Another huge problem will be trademark, an area of law in radical need of updating in light of new technologies. You see this in eBay auctions: people auction their Rolex watch, Rolex says, "you can't do that, you're infringing our trademark...". The law compels Rolex to defend their trademark or lose it, so in some sense they're forced to take that ridiculous position. But in some cases they like taking that position, because that protects them from competition.

This could affect projects like Wikipedia, especially as Wikipedia becomes more ambitious in the types of media it provides and the access it affords. I think that [legal] irrationality, or trademark law that is out of tune with the technical framework, will provide danger to Wikipedia much as it provides it to the libraries of free culture.

Gibt es irgendetwas, dass wir tun können um dem vorzubeugen?

LL: Not really. The problems with trademark beg for legislative and judicial correction. There are certainly steps (which it's not appropriate [for me] to advise about) -- there are steps you could take to minimize exposure, but on the other hand there are steps we ought to take to change the legal rules, to make them make more sense.

Sprachen, Übersetzungen

Die CC Lizenzen gibt es in vielen Sprachen. Die GFDL ist aber nur in Englisch offiziell gültig. Denken Sie, dass es schwerer ist, diese Lizenz auf hunderte verschiedene Gemeinschaften zu übertragen?

LL: Obviously, I agree with the substantive objectives of GFDL. My personal view (there's disagreement about this) is that GFDL is optimistic that it can apply internationally without trouble by insisting on an English [license] requirement.

Wie gehen große Organisationen wie die UN damit um?

LL: A better analogy : how does Microsoft deal with this? Microsoft has licenses which it attaches to its software... designed to be universally applicable, but also localized, depending on where you're from. It's dealing with it in a similar way that [Creative Commons is] dealing with it. The objectives of the licenses are very different, but our reaction to the legal reality is fundamentally the same.

Wikipedia, Cultural Content Reuse

Wie haben Sie die Wikipedia-Seite entdeckt? Was war Ihre erste Reaktion?

LL: Ich weiß noch, dass ich eine außergewöhnlich lange Zeit (eine Stunde, zwei Stunden) als ich andere Sachen hätte tun sollen, einfach nur durch die Wikipedia gewandert bin um herauszufinden wie sie arbeitet, wer sie macht, und was sie am Laufen hielt. Es war eines dieser "Aha!" Erlebnisse beim Erkunden des Netzs - die Menschen haben immer gesagt, dass so etwas möglich wäre und hier war es, happening. And happening with much greater success than people would have predicted ex-ante. Es war ein sehr aufregendes Erlebnis.

Is it fair to say some big content holders -- MIT, the BBC, the Supreme Court -- have released restrictions on much of their content, but we have yet to see it extensively reused?

LL: It depends on how you mean 'reuse'... In the sense of taking media content and remixing it, we're just beginning to see a lot of that. But that's because the technology is just beginning to penetrate. It's going to take time before people feel comfortable with that.

That's beginning to change, as archive.org and similar sites make content available and people begin to use it in really powerful ways. The more that happens, the easier it will be for people like me to argue [in advocating changes to copyright law], "this is an important part of culture."

CC vs GFDL, CC und WP

Creative Commons and GFDL are similar in spirit, but not technically compatible. Do you see merit in making them compatible? Or do they serve different purposes?

LL: At the level of abstraction we typically think about, to the extent that we are talking about free licenses, there is perfect compatibility between the objectives of GFDL and of Creative Commons licenses. Right now they technically don't interoperate... It would be great if we could make them all interoperable.

How long will it be before we can have this kind of interoperability?

LL: The hard thing for a project like Wikipedia is the retroactive part -- to what extent can we conform the old with the new? From the standpoint of "when will we have the tools to [create new content] in a cross-platform-compatible way?" (where 'platforms' mean different free license platforms), I expect within 6-8 months we'll have that technology built in.

Wikimedia develops lots of content, but few people gain any reputation; the Creative Commoners you talk about are creative artists striving for reputation. Do you think these are paths to different creative cultures? Will there be a merging of the notion of the individual creator, with that of people contributing to a whole?

LL: I don't see them to be as distinct as that question presumes. You can look at somebody like Louis Armstrong and say "Wow, wasn't he amazing?" Or you can look at jazz, and say, "Isn't jazz amazing?" And its amazingness is constituted in part by particular people like Louis Armstrong. I think that's similar to what you see if you look at Wikipedia vs. what Creative Commons is typically describing.

Because Wikipedia is jazz, it is amazing -- the product of innovation, and "building on top of," in exactly that way. It is harder to be a particularly great jazz musician within that tradition, harder to be noticed, but I'm sure you could point to particular people (I don't know who they are) who have done the most amazing work within that particular genre.

We're both building great genres one creator at a time. Depending on the project, you might be more astonished by the collective product, or by the individual contributions to it.

CC version 2 has attribution as a fixture, not an option. Is part of our culture changing its notion of authorship?

LL: Creative Commons has not been building licenses so far to deal with this idea of collective authorship. But we are spending a lot of time thinking through what the appropriate CC-like license is for projects like this.

You could think of a CC-wiki license which would be a form of work-for-hire but not in the traditional sense. That's something we're thinking about and obviously eager to provide if the market of free culture has a strong demand for it.

You try passionately to change the law in a number of ways, in court and with the Creative Commons. Do you see the efforts to change free culture through Creative Commons as more promising than going through the courts?

LL: Multiple strategies are essential. Nothing in Creative Commons insists that people agree with me about copyright terms, or about problems of over-extensive rights being granted by Congress. So we can get allies in the context of the free culture who think of me as the devil in the context of copyright regulation. That's important, because it reflects a basic humility about the law which I think we all should admit: none of us really knows what is the best thing here.

But it also permits different movements to be understood differently. The free culture movement, driven by a bunch of students and projects around the country, is different from Creative Commons, and that's different from what I do at the Center for Internet and Society. We don't demand a loyalty test across all of those things.

There has been some discussion recently among Wikimedia volunteers about the Foundation getting involved with political advocacy...

LL: I don't know enough about the dynamics of the Wikimedia Foundation. It's not obvious that an organization as successful and as powerful as the Wikimedia Foundation in the context of building free culture, should (or shouldn't) take on the very difficult and alienating and divisive battles around the copyright wars. I think it's a question that needs to be addressed after a lot of consideration, and not just on the basis of what particular people think is right.

Case of Evil

Danke. Noch ein letzte Frage: Was wäre wenn Sie morgen aufwachen würden und BÖSE sein würden. Welche rechtlichen Schritte würden Sie einleiten um die Wikipedia zur Strecke zu bringen?

LL: <ponders> One of the hardest features of copyright law, for projects like Wikipedia, is the international variability of copyright terms. You could exploit that to create great liability for Wikipedia by finding content which is only free in some jurisdictions... and then use other jurisdictions to shut it down.

Man muss es wirklich wollen. Das ist der große, wichtigste Schutz der Wikipedia. Es kann sein, dass es Menschen gibt, die nicht wollen, dass man ihre Arbeit weiterverwertet. Sie werden sich beschweren und ihr werdet ihren Inhalt herausnehmen müssen. Aber es gibt keinen Gegner, der so stark ist und die Fähigkeit und Strategie dazu hat, die wikipedia an sich in Frage zu stellen. Ich denke, die Wikipedia kann lokale Probleme überleben und wird keinen allgemeinen bösen Gegenspieler haben.

Gott sei Dank. Und danke, dass Sie sich einen Moment Zeit für uns genommen haben!