Copyleft Hits a Snag

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Wales expects that the compatibility problem will become larger as more video and audio is developed for sharing. Ultimately, says Lessig, the issue could lead to lawsuits over content misuse, particularly if a large institution, such as a university, were found to have violated license agreements by hosting or facilitating collaborations that mix licenses.

Right now, those are hypothetical problems, and the issues are more annoyances than potential torts. Lessig said that when he realized the problem, while speaking with Wales at a conference in Barcelona, Spain, last summer, “it was a Homer Simpson moment.” He said the issue took him back to the early days of mainframe computers, when machines built by IBM or Remington Rand couldn't exchange data. And he says it's happening now because legal culture is still stuck in the equivalent of the computer mainframe era. “We need to apply the principles of networks to law,” Lessig says.

That may be easier said than done. One part of the fix may be simple, says Eben Moglen, a professor at Columbia Law School and founder of the Software Freedom Law Center. “It’s comparatively easy to adjust the license language” to allow people to mix certain kinds of copyleft without compromising their original licenses, Moglen says. But without a common legal framework for all copyleft licenses, works that inadvertently mix licenses might become unshareable.

Creative Commons is working to address exactly that issue. Lessig says he expects to announce new language for appropriate Creative Commons licenses in January 2006, language that will allow one-way compatibility with the Free Documentation License -- meaning people creating works under the FDL would be free to use Creative Commons-licensed content. (In this case, the relevant Creative Commons licenses needing modification are the “attribution by” and “attribution share-alike” licenses.)

Lessig says the language is currently circulating among Creative Commons advisers in draft form. Wales, meanwhile, is lobbying the Free Software Foundation to make accommodations in its language so that FDL-licensed content can be incorporated into Creative Common-licensed content.

Lessig and colleagues at Creative Commons are also trying to start a legal advisory board called CC: Lab, comprised of six to eight experts in licensing, who would become a standards body for copyleft licenses, giving guidance on how to structure licenses so that content meant to be shared can actually be shared. Lessig says Creative Commons will provide seed funding for the board, but he's also looking for a grant over the longer term. He hopes to see this board launched in the spring of 2006.

Lessig thinks the design flaw in copyleft has been caught early enough that the license questions can be resolved before any major intellectual-property lawsuit crops up. However, he acknowledges that the issue is a tricky one . "It's not easy to address, but it's certainly possible," he says. "It will take some careful legal craft and some willingness on the part of people who have developed other free content licenses."