Volume 2009 — Issue 1

The goal of this article is to address the major differences between the legal strategies of the two leading movements advocating for an intangible commons in the digital age, namely the Free Software Movement (―FSM‖) and Creative Commons (―CC‖). These two movements see the expansion of copyright as a threat to the stated goal of copyright law itself: the promotion of science and useful arts.1 Due to the constraints set by domestic laws and international legal instruments, free software advocates first developed alternative copyright licenses (―public licenses‖) to facilitate the distribution, access, and use of free software, so that a community that honors sharing and collaborating could be re-established. FSM‘s strategy of using private ordering to create an intangible commons seems to have gained broad support. CC has developed a similar, but more flexible licensing model for other kinds of copyrighted works. In recent years, CC licenses have been widely adopted by on-line communities. However, with the flexibility of the CC licensing scheme comes the ambiguous agenda of its movement. With the proliferation of participants and their various politics carried under the umbrella of CC, one may find it difficult to ascertain if CC-license adopters share the same critiques of the current copyright regime with other intangible commons advocates and if they propose the same solution.
I examine the licensing models of the FSM and CC since public licenses are instrumental in these initiatives, which comprise the broader free culture movement and can embody this movement‘s critiques of copyright law. After providing some background, I compare and analyze the private ordering strategies in the two movements and review some criticisms of the CC model. I will argue that, for communities aiming to build an intangible commons, public licenses have to be designed for a double purpose—on the one hand, they are an internal normative structure of these communities, and on the other hand, an interface, or an external protocol, between these communities and the proprietary world. Taking this dual purpose into consideration, this Article argues that, for the free culture movement to thrive, well-designed public licenses must enable these communities to negotiate with the dominant legal regime for more room and time to experiment with their ways of production and exchange, allowing these communities to strengthen themselves by fortifying a boundary, so that they can defend themselves against the overarching copyright regime and proprietary practices.