Grimmelmann

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The Ethical Visions of Copyright Law, 77 Fordham L. Rev. 2005 (2009), asks how copyright law imagines us as moral agents. While legal scholars have tended to focus on consequentialist acounts of copyright as a system, the day-to-day practice and rhetoric of copyright have an interestingly deontic flavor. This fact is visible (in mirror-image) in the rhetoric of free software advocates; it explains some of the interesting ambiguities surrounding Creative Commons.

The "default ethical vision" is the version of copyright law whose assumptions about human behavior are most visible in the Copyright Act and judicial decisions. It's structured in a way that encourages and depends on marketplace exchange and reciprocity between authors and audiences. Authors should create works that audiences will enjoy; audienes should pay to support authors. Both sdes should treat the other with respect. The Copyright Act's emphasis on voluntary liensing and the sale of copies implicitly depend on this form of exchange; judges regularly make the assumption explicit.

To see the power and prevalence of this vision, note that it underlies not just the anti-piracy rhetoric of the RIAA and MPAA, but also the pro-audience rhetoric of the EFF. Both sides treat the voluntary sale of copies of creative works for a fair price as the ideal state of affairs. They differ primarily in assigning the blame for the breakdown of this realtionship to each other.

By way of contrast, the free software movement has developed a critique of copyright law and the creative process that is fundamentally incompatible with this vision of market-mediated respect. If, as Stallman and many others assert, it's unethical to give someone a piece of software while withholding the source code and the legal rights to modify it, the whole system of selling software unravels. In its place, free software substitutes a _different_ ethical vision of respectful author-audience exchange, one that values follow-on creativity and emphasizes a kind of Kantian imperative to honor the different needs and desires of software users by letting them make their own unrestricted uses.

This split explains some of the ambiguities around the Creative Commons project. On the one hand, Creative Commons aims to be broadly compatible with the default vision. It provides authors a way to relinquish some of their rights, but emphasizes that the choice is voluntary. (Its materials studiously portray authors as victims of overreaching copyright law, rather than actors responsible for the overreaches.) In this way, it seems to be seamless with the default vision; authors and audiences can slide between selling and Creative Commons licenses with ease.

On the other hand, the project (particularly in its Share Alike licenses) taps into some of the theory and experiences of the free software movement. In so doing, it draws upon the movement's embrace of sharing as an ethical at. That embrace, however, involves a deliberate rejection of the default ethical vision's assumptions that using copyright law to enforce the terms of restrictive sales and licenses is itself ethical. Thus, Creative Commons has been critiqued both as a radical assault on copyright--and as not radical enough.

This ambiguity raises difficult questions about the stability of free culture's place in a paid-culture world. Free culture ideas aren't inherently coupled to a copyright reform agenda; free culture advocates must constantly decide whether (and how closely) to make that association. Both routes open up useful ethical appeals. To the extent that free culture is contiguous with a selling culture, it can make familiar appeals to authors, emphasize the possibility of indirect financial returns, and valorize sharing as an extension of authors' existing respect for audienes. To the extent that free culture requires a break with a selling culture, it can emphasize the unforced generosity of gifts, use shame as a weapon, and develop the ideal of creative communities that build on past work.

The rhetorical ambiguities among these ethical visions have allowed free culture advocates to equivocate between them. The underlying tension, however, has spooked some who are invested in the default ethical vision. They see in Creative Commons a movement dedicated to the proposition that what they've been doing--selling works to eager audiences--is in fact proundly unethical, and are threatened by the critique.

Topics participants in the workshop might consider along these themes:

(1) How do free culture advocates and practicioners address each other, and how do they address outsiders? Do their rhetorical strategies differ? To what extent do they advance an ideology that is broadly compatible with the default ethical vision of copyright, to what extent is their rhetoric incompatible with that vision--and do they switch between these modes depending on audiene?

(2) Can closer study of the practice of free culture yield more detailed articulations of its implicit ethical visions? What do the choices and language of members of different free culture communities tell us about their ideals and ideas? What do they see as their obligations to each other? Are there special expectations (or special leeway) for especially creative individuals? What are your responsibilities towards the sources on which you draw?


This topic is one that's been under-explored on the legal side, which has tended to focus primarily on consequentialist accounts, whether utilitarian or rooted in distributive justice. Nonetheless, it's close to the surface of what many in free culture communities see as their goals, and it connects well to many scholars' approach to free culture issues. It raises fundamental questions about the purpose and nature of free culture, and about its relationship to mass commercial culture. The ethical angle connects to the work of philosophers; the rhetorical angle to literary and communications scholarship; the emphasis on recognizing practices to the anthropologists who have studied specific communities, and so on. Most participants at the workshop will have something to contribute on one of the themes of this topic.

James Grimmelmann is an associate professor at New York Law School and a former Creative Commons intern.