|Zittrain I 191
Copyright/Content/Benkler/Zittrain: Thickets similar to those found at the code layer also exist at the content layer. While patent does not significantly affect content, legal scholars Lawrence Lessig and Yochai Benkler, as well as others, have underscored that even the most rudimentary mixing of cultural icons and elements, including snippets of songs and video, can potentially result in thousands of dollars in legal liability for copyright infringement without causing any harm to the market for the original proprietary goods. (1) Benkler believes that the explosion of amateur creativity online has occurred despite the legal system, not thanks to it. (2) The high costs of copyright enforcement and the widespread availability of tools to produce and disseminate what he calls “creative cultural bricolage” (3) —something far more subtle and transformative than merely ripping a CD and sending its contents to a friend—currently allow for a variety of voices to be heard even when what they are saying is theoretically sanctionable by fines between $750 and $30,000 per copy made, $150,000 if the infringement contained within their expression is done “willfully”. (4)
The frequent unlawfulness of amateur creativity may be appealing to those who see it as a countercultural movement, like that of graffiti—part of the point of doing it is that it is edgy or illegal. It may even make the products of amateur cultural innovation less co-optable by the mainstream industrial information economy, since it is hard to clear rights for an anonymous film packing in images and sounds from hundreds of different sources, some proprietary. But if prevention of commercial exploitation is the goal of some authors, it is best to let them simply structure their licenses to preclude it. Authors can opt to share their work under Creative Commons licenses that restrict commercial reuse of the work, while permitting limitless noncommercial use and modification by others. (5)
1. See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY (2004).
2. YOCHAI BENKLER, THE WEALTH OF NETWORKS 278 (2006).
3. Id. at 275.
4. 17 U.S.C § 504 (West 2006).
5. See Creative Commons, Choose a License available at http://wwwcreativecommons.org/license/ (last visited Mar. 22, 2007).
_____________ Zeichenerklärung: Römische Ziffern geben die Quelle an, arabische Ziffern die Seitenzahl. Die entsprechenden Titel sind rechts unter Metadaten angegeben. ((s)…): Kommentar des Einsenders.
The Wealth of Networks: How Social Production Transforms Markets and Freedom New Haven 2007
The Future of the Internet--And How to Stop It New Haven 2009