Sometimes It's Better to Give Stuff Away
Sometimes It's Better to Give Stuff Away
Sharing content increases information access and helps spread ideas
I published my first book, Liberty’s Refuge: The Forgotten Freedom of Assembly, with Yale University Press in 2012. At the time, my friend Jamie Boyle suggested that I ask the press to publish it under a Creative Commons License. That meant anyone could access and use the book’s full content for free, as long as they attributed the work to me and did not make money off my work.
The idea sounded nice in terms of access, but I was skeptical. Wasn’t the press interested in making money? And if the book was freely available online, why would anyone pay for it, especially at the high price point of a first academic book?
Jamie’s argument was simple: (1) academic books don’t usually sell many copies; (2) at least some readers and libraries will buy the book anyway; and (3) the more the book circulates, the more its ideas will gain visibility.
Jamie persuaded me to ask Yale despite my reservations, and much to my surprise, Yale agreed. This was due in no small part to the fact that Jamie was one of the founding board members of Creative Commons and had successfully lobbied Yale to publish his own book, The Public Domain: Enclosing the Commons of the Mind, under a Creative Commons License.
In The News
Creative Commons has facilitated a great deal of online content sharing. For example, I find most of the images for this newsletter through a Creative Commons search engine. The rules are usually fairly straightforward and consist of licenses comprised of one or more of the following four elements:
BY = Attribution (must credit the author)
NC = NonCommercial (may not use the work for commercial gain)
ND = NoDerivatives (may not modify the work; may only share exact copies of the original)
SA = ShareAlike (may modify the work but must license the modification on the same terms as the original)
One complication is that Creative Commons allows users to tailor their attribution requirements. And this sets the stage for “copyright trolls” to engage in what one commentator has called “highly automated, mass-scale extortion.”
This spring, a student website that posted a generic image of a syringe taken from a Creative Commons site received a letter “demanding thousands of dollars for a copyright infringement.” Apparently, the site’s operators had missed the fine print of the license requirements “which stated that anyone who uses the image must link to a specific page on the photographer’s website and also include licensing terms in the photo’s credits.”
Commenting on this demand letter, Mike Hiestand, of the Student Press Law Center suggested:
Unfortunately, some photographers and companies are now intentionally taking advantage by including very specific or complex licensing terms that they know most—or at least many—users probably won’t comply with. Let’s call it what is: a trap. And once a user falls into their trap, a demand letter soon follows.
It’s not clear to me that the attribution requirements were as complex as Hiestand suggests. But even if they were fairly straightforward, a demand letter seeking thousands of dollars for what appears to be an honest mistake doesn’t exactly fit the spirit of Creative Commons.
As a partial countermove to the trolls, Creative Commons has added a “cure” provision to the newest version of its licenses that allows users to fix minor attribution errors within thirty days of being notified of them.
In my Head
Although I did not fully appreciate it at the time, publishing under a Creative Commons License has made Liberty’s Refuge far more accessible than my other books. As a result, Liberty’s Refuge is more likely to be consulted by lawyers, legislators, students, and activists interested in learning about the right of assembly. It’s available to any of them at the click of a button.
One of the most gratifying aspects of making the content freely available has been hearing from people who live in places that don't yet have the right of assembly but who are working hard to change that reality. I have heard from dissidents in China, Iran, and other countries imagining a right of assembly that might one day come into existence.
Despite the many upsides of Creative Commons, I don’t want to suggest it is for everyone. After all, I have published subsequent books with more traditional copyright protections, and I value the role of publishers whose business model depends on book sales. But some books, especially those that aren’t projected to sell a lot of copies anyway, would benefit more from increased reach than increased sales.
I have also tried more open access approaches in teaching, and over the years I have moved away from using traditional law school textbooks. These bulky volumes vary in scope and content, but most of them consist primarily of judicial decisions whose text is freely available online. Some judicial decisions are quite verbose and many have long and technical sections not relevant for a given class. So part of a casebook editor’s job is to edit cases, producing clearer and more concise versions. Casebook editors also provide structure, add secondary materials, and raise provocative questions. Casebooks can be excellent tools for classroom instruction, and I’ve used some of them in past courses.
On the other hand, today’s casebooks can now cost upwards of $200. And because they’re prearranged in a certain order, any teacher choosing a different sequence or emphasis can end up “fighting the casebook.” For these and other reasons, I have moved away from casebooks. I still assign books in seminars, and when I teach criminal law, I assign Joshua Dressler’s indispensable and reasonably priced treatise, Understanding Criminal Law. But I otherwise edit and organize my own cases, and I provide introductory comments for each unit. Placing content online also allows me to share it beyond my students and link to other relevant sources. (You can see an example of this approach in the online content for my course on Religion and the Constitution.)
In the World
Jamie Boyle’s book, The Public Domain first introduced me to Creative Commons and related ideas. The book offers a roadmap for building and preserving access in the information era amidst challenges from copyright, patent, and trademark laws. Jamie argues:
We need a movement—akin to the environmental movement—to preserve the public domain. The explosion of industrial technologies that threatened the environment also taught us to recognize its value. The explosion of information technologies has precipitated an intellectual land grab; it must also teach us about both the existence and the value of the public domain. This enlightenment does not happen by itself. The environmentalists helped us to see the world differently, to see that there was such a thing as “the environment” rather than just my pond, your forest, his canal. We need to do the same thing in the information environment.
The Public Domain covers both Creative Commons, which licenses content for free use, and the public domain, which includes works with expired copyrights (currently covering most works created before 1923). Although published in 2008, Jamie focuses on ideas and stories that relate to the human experience and give his book enduring value. This highly readable and entertaining book is an excellent introduction to complex and important ideas related to information access.
And, of course, The Public Domain is available for free under a Creative Commons License.
I had wondered why the text of Liberty's Refuge was available online, but that makes sense!
When I write a journal article, I expect that it will be more or less freely available online to anyone wishing to read the article (subject to a few exceptions, of course). Part of the reason for this is that my article is only going to be useful insofar as other people read it, cite it, and build off of it. In a way, why should a book written for the same purpose be any different? As long as its intended audience is other scholars, it's really just a longer version of a journal article (though I've seen journal articles that are longer than some books!), so it ought to be just as accessible to other scholars.
That sort of turns the question around. Why *wouldn't* you publish a book under an open-source model?
Copyright law, patent law--are there others in that same domain?--so essential for the creators of intellectual property. Yet at the same time, as is true of so much in our social arrangements, really dependent on trust and good faith. In the absence of good faith and trust, it's alarming to see "the games people play." I wonder how much of what would otherwise be creative energy gets drained in defending against the trolls, the bad faith members of society.