This article appeared in the March 2005 issue of Five Eight Magazine. Five Eight a music industry trade magazine based in London.

The original article I wrote follows the images below: it is slightly longer, as it is before Five-Eight magazine trimmed it, though it is substantially similar.

A PDF of the article is also available for download.

In the fall of 2002, I was putting together a new company, called Magnatune, which aimed to be a next generation record label. Frustratingly, I was faced with a multitude of legal questions. How could I legally allow visitors to listen to mp3 music on my web site? What would those visitors be allowed to do with that music? How could I take advantage of the "sharing" and word-of-mouth culture of the Internet to promote my business while still remaining legal?

I chose to use a Creative Commons license. In this article, I'd like to explain what this means, the reasons for doing so, and give a status report--2 years into it-on how this decision has impacted my business.

Lawrence Lessig, an American law professor and author, realized that a large gap exists between Internet Culture and the Legal World. Internet Culture, with its emphasis on sharing, communications, and openness, has produced a variety of wonderful things in recent years, perhaps the greatest explosion of creativity in this century. Lessig's fear was that the Legal World, which doesn't automatically embrace these values, is endangering the future of Internet Culture. He endeavored to bridge Internet Culture and Legal Culture, and the Creative Commons is his creation. The Creative Commons licenses make it easy for creators of new works to support positive values, cheaply and legally, while still retaining rights that the creator wants to retain.

When you create something new--such as a song or a story--you automatically get certain creator's rights over that new work. The term "copyright" doesn't refer to just one right, but to a spectrum of rights you are granted, such as the right to control how that work is published, how it's used, as well as several other rights. When you declare a "copyright" on work, you effectively say that you control all aspects of how that work can be used. This is why "copyright" is often followed by the words "all rights reserved."

At the other end of the spectrum is the concept of "public domain." When you, as a creator, assign your work to the public domain, you release all your rights to that work: it is the opposite of "copyright: all rights reserved." You now have no control.

These two extremes are not very useful on the Internet, where the mere visiting of a web page represents "copying" HTML and graphics to your computer so that they can be displayed. Many forms of audio playback on the Internet, such as MP3 files, involve copying the entire file to your computer so that they can be played. In order to deal with this legal tangle, many web sites have a "terms of use" page, which explains, in sleep-inducing detail, exactly what legal rights they are granting you.

The problem with the "terms of use" approach to web site content is that it a) requires money to be thrown at lawyers, b) isn't understandable by ordinary (non-lawyery) people, and c) every web site has a different legal document, incurring a high legal cost if one is to try to understand what rights are being granted, such as to mix content from various sites to create a new work (such as a new article).

The Creative Commons tries to fix this mess. At the Creative Commons web site, you will find a computerized license creation engine, which creates standardized "some rights reserved" legal licenses according to a short number of important parameters you choose to give it.

But what's most interesting about the Creative Commons is that their license generator makes it easy to create legal licenses which represent certain social goals, such as openness, allowing non-commercial use of a work at no cost, and allowing reuse.

In other words, the Creative Commons allows creators of new works to "help the world" and "be a good world citizen" in precisely the ways they want, and to do so with a legal document, yet without legal fees.

When you want to assign a Creative Commons license to your work, you visit www.creativecommons.org, click on "publish" and then are faced with two decisions about how others will be able to use your work. The first is:

* Do you want to allow commercial use of your work, at no cost and without your permission being needed?

Magnatune, like many businesses, exists to make money. As such, I wasn't willing to allow commercial use of our music for free. However, I reasoned that non-commercial use, such as our music appearing in a student film, or having the music appear on music recommendation web sites such as www.webjay.org, would serve as free advertising and create enthusiasm for Magnatune.

When uses of our music are non-commercial, no one is making money from it, and the likelihood of my being able to charge for that use is pretty low. Furthermore, Magnatune's music is widely distributed through these free non-commercial uses, essentially providing us with free advertising. And since Magnatune also licenses its music for commercial use, I reasoned that film students have to eventually graduate, and will then want to pay for our music because of our earlier generosity.

The second question touches at the heart of Internet Culture:

* Can people modify your work, and if so, does the new work have to also have a Creative Commons license on it?

A resounding "yes" has been part of the success of Linux and other open-source projects, but has not appeared in other, non-software spheres. With music, for instance, one can sample guitar riffs to make a new hip hop song, or add a drum beat to a choral piece to make a chill-out electronica song, or even do a "cover" version where the song is reperformed from scratch. Mixed media uses are common, such as fixing music to film, or as a background track to a video game.

Under the "copyright: all rights reserved" system, all these uses of music require explicit permission of the copyright holder, and typically involve hefty legal fees to allow the use. This freedom to create "derivative works" is part of what has made the Internet a success, allowing people to freely build on other's work. Unfortunately, it's been largely absent in the music world, where control reigns, other than use of the public-domain canon of classical music.

There's an intriguing twist to this 2nd question: what some call the "viral" effect of open source licenses. The Linux operating system carries a software license called "The GNU Public License", which requires all who make new works using some GNU license source code, to release any changes they make under a GNU license. In practice, this means that if you build on GNU license programs, your program will also need to be GNU licensed.

This small clause has had revolutionary consequences: all software developers today must make a choice. They can choose to quickly build a new software program from others' GNU licensed components, and therefore have their own program be GNU licensed. Or, they can choose to "go it alone" and starting from nothing, only using work one has authored oneself, or paid to license from other companies. Going it alone takes much more time and money, and often results in an inferior product. This ability to build on a large body of work has been the "open source advantage", the reason so many important and successful software programs--such as most of the software that runs the Internet-has been based on open source.

Magnatune's decision was to allow others to create new works using our music, but to require these new works to carry a Creative Commons license. Why? There is a well-known, successful business model in the software business, where an open source license is granted for free, but companies not wanting to be restricted by that license choose to pay for a different license with different terms. It's a variation on the shareware concept: offer something limited but useful for free, and charge for an unrestricted full product.

In Magnatune's case, anyone can use our music for free as long as that use is non-commercial, and attribution is given. But, if someone wants to use our music for commercial gain, they can purchase commercial use rights from our online music-licensing engine. With a purchased license from Magnatune, the new work can be released commercially. This approach, encouraging free use while facilitating commercial use, has been quite successful in promoting Magnatune's music licensing. After two years in business, we are selling 20 commercial music licenses per month, and I don't think we would have this success without the Creative Commons license and its promotion of a free sector.

The only major risk is that someone might misread the Creative Commons license and use our music in a setting that isn't allowed. A common example of this misunderstanding occurs when our music is played in art galleries and cafes, settings that are definitely commercial, even though money is not directly made from the music. However, these infractions are relatively minor, result in increased exposure for our works, and are a small price to pay. It should also be noted that "copyright: all rights reserved" music is also widely misused: the current system is not perfect either.

The Creative Commons organization has also issued a number of special purpose licenses, created in response to domain-specific requests. For example, some musicians want to allow file sharing of their MP3s on peer-to-peer networks, but don't want to grant any other rights. The "Share Music" license serves this purpose. Other musicians want to allow sampling of their works, but want to only allow new works that are "highly transformative". Other uses would be forbidden, such as using the music unmodified in a film. The "Sampling" license handles this case, though admittedly the line from fair to unfair use can be a fuzzy one. The "Developing Nations" license "allows you to invite a wide range of royalty-free uses of your work in developing nations while retaining your full copyright in the developed world " while the "Founder's Copyright" recreates the goals of the original constitution and grants full copyright for 14 or 28 years.

The Creative Commons' goal is to enable creators to release their works with "some rights reserved", striking a balance between the creator's personal desires, their social desire for improving the world, and creating a better future for creators in general. Since the Creative Commons is a global effort, recent advances have included translations and localizations of the licenses to 14 legal jurisdictions. Recently, the v2.0 release of the Creative Commons license allows for one to release derivative works under the locally adapted version of the Creative Commons license, for example using works under the French and American licenses and releasing under the same (but adapted) UK License.

With the legal framework under their belt, the Creative Commons organization has focused on promotion, with the launch of CC Mixter, a remix web site (coincidentally run by Magnatune artist Victor Stone), a popular free "remix me" CD included in an issue of Wired Magazine, and the launch of the Science Commons, which is an attempt to open up the field of scientific publishing.

As a critical mass of licensed works builds, the future looks bright for the Creative Commons. Thanks to their efforts, it is increasingly easier for new works to be built on previous ones. The competitive advantage of building on existing works is often so much greater than the "go-it-alone" approach, that even companies as mighty as Microsoft are having trouble competing. The Linux phenomena may spread to other venues. Let's look forward to the day when we can easily build on the past, without lining the pockets of lawyers along the way.