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What Contracts Cannot Do: the Limits of Private Ordering in Facilitating a Creative Commons Fordham Law Review Volume 74 Issue 2 Article 3 2005 What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons Niva Elkin-Koren Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons , 74 Fordham L. Rev. 375 (2005). Available at: https://ir.lawnet.fordham.edu/flr/vol74/iss2/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons Cover Page Footnote Professor, University of Haifa School of Law. I wish to thank Yochai Benkler, Michael Birnhack, Julie Cohen, Rochelle Dryfuss, Kevin Davis, Bernt Hugenholtz, Mathias Klang, Lawrence Lessig, Jessica Litman, Neil Netanel, David Nimmer, Helen Nissenbaum, Gideon Parchomovsky, Eli Salzberger, Anthony Reese, Pamela Samuelson, Katrina Wyman, and Diane Zimmerman for their comments and criticism on an earlier draft. I also thank the participants at the IViR workshop on Commodification of Information, Amsterdam, July 2004, the Colloquium on Information Technology and Society, Information Law Institute, NYU School of Law and UCLA, and the participants of faculty workshops at the University of Connecticut Law School, Georgetown University Law Center, and NYU School of Law for helpful comments and discussions. I am grateful to Rachel Aridor and Leigh C. Thompson for their excellent research assistance. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol74/iss2/3 WHAT CONTRACTS CANNOT DO: THE LIMITS OF PRIVATE ORDERING IN FACILITATING A CREATIVE COMMONS Niva Elkin-Koren* INTRODUCTION Let's say you are worried about the rapid expansion of intellectual property rights in recent years. You are enthusiastic about open competition and free culture, and very much concerned with the shrinkage of the public domain. You worry about the inefficiencies created by expansive copyrights, by limited access to resources, and by restraints on the ability to create. You wish to safeguard the public domain and encourage the sharing and reusing of creative works by individual creators. It seems that many of the new opportunities that were made possible by digital technology are increasingly enjoyed by the massive enclosure of the public domain and the increasing commodification of information. There seems to be no way out. The legislative process is captured by the content industries. Apparently this is not a coincidence. As public choice theorists have shown, small homogenous groups that have a lot to gain, such as the content industries, have persistently pressured for even stronger proprietary rights. 1 Courts seem to be shorthanded, failing to set constitutional limits to extensive intellectual property rights.2 Finally, * Professor, University of Haifa School of Law. I wish to thank Yochai Benkler, Michael Birnhack, Julie Cohen, Rochelle Dryfuss, Kevin Davis, Bernt Hugenholtz, Mathias Klang, Lawrence Lessig, Jessica Litman, Neil Netanel, David Nimmer, Helen Nissenbaum, Gideon Parchomovsky, Eli Salzberger, Anthony Reese, Pamela Samuelson, Katrina Wyman, and Diane Zimmerman for their comments and criticism on an earlier draft. I also thank the participants at the IViR workshop on Commodification of Information, Amsterdam, July 2004, the Colloquium on Information Technology and Society, Information Law Institute, NYU School of Law and UCLA, and the participants of faculty workshops at the University of Connecticut Law School, Georgetown University Law Center, and NYU School of Law for helpful comments and discussions. I am grateful to Rachel Aridor and Leigh C. Thompson for their excellent research assistance. 1. See William M. Landes & Richard A. Posner, The Political Economy of Intellectual Property Law (2004); Jessica Litman, Digital Copyright (2001). 2. See Eldred v. Ashcroft, 537 U.S. 186 (2003). In this case, the appellant operated an online service that allowed users to download free of charge books and other works that were no longer protected by copyright law. Id. at 193. The appellant claimed that the Sonny Bono Copyright Term Extension Act of 1998 ("CTEA"), which extended the copyright term by twenty years, both for existing works and for new works, violated his free speech rights. Id. at 193-94. The Supreme Court affirmed the constitutionality of the CTEA. Id. at 221-22. For further discussion on the ramifications of the Eldredcase, at the intersection of copyright FORDHAMLA W REVIEW [Vol. 74 international pressure on national governments makes it difficult to rely on the global arena for remedying the deficiencies of intellectual property laws 3 at the domestic level. Given this background, private ordering-self-regulation voluntarily undertaken by private parties-turns out to be an attractive option. It promises to allow individuals and communities to figure out, on their own, a way to bypass the increasingly protectionist global intellectual property regime. Can contracts do the work? In recent years, many scholars have identified the dangers of private ordering for the public domain, and warned against further propertization of information and stronger rights that are made available by contracts. 4 Could, however, the copyright opposition use contracts for strengthening the public domain? Creative Commons seeks to do exactly that. Creative Commons is a nonprofit U.S. based organization that operates a licensing platform promoting free use of creative works. 5 The idea is to facilitate the release of creative works under generous license terms that would make works available for sharing and reuse. Creative Commons advocates the use of copyrights in a rather subversive way that would ultimately change their meaning. It introduces an innovative way of exercising legal rights to bring about social change. Creative Commons' strategy is not only innovative at the practical level, but also original at the normative level. In recent years, legal commentary related to intellectual property focused on the continuous expansion of proprietary rights and the consequential shrinkage of the public domain. The copyright/public domain dichotomy emphasizes copyrights as a key factor in allocating informational resources. It assumes that the scope of copyright as defined by law, whether it is widened or narrowed, will ultimately determine the way information resources are produced, distributed, and reused. Copyright protectionists believe that expansive copyright protection is mandatory in the digital environment, which makes informational goods an essential asset and at the same time increasingly difficult to exclude. Public domain advocates, by contrast, perceive the expanded copyright regime as a growing threat to academic freedom, free speech, and cultural autonomy, which will compromise efficiency and stifle and free speech, see Michael D. Bimhack, Copyright Law and Free Speech After Eldred v. Ashcroft, 76 S.Cal. L. Rev. 1275 (2003). 3. See Peter Drahos & John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2003); Susan Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Steve Smith ed., 2003). 4. See Lucie M.C.R. Guibault, Copyright Limitations and Contracts: An Analysis of the Contractual Overridability of Limitations on Copyright (2002); Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of "Rights Management," 97 Mich. L. Rev. 462, 538-59 (1998); Niva Elkin-Koren, Copyrights in Cyberspace-Rights Without Laws?, 73 Chi.-Kent L. Rev. 1155, 1187-99 (1998). 5. See Creative Commons, http://creativecommons.org (last visited Sept. 2, 2005). 2005] WHAT CONTRACTS CANNOT DO innovation. 6 Creative Commons' strategy deviates from the current copyright/public domain dichotomy. First, it does not aim at creating a public domain, at least not in the strict legal sense of a regime with no exclusive proprietary rights. Second, Creative Commons' strategy is entirely dependent upon a proprietary regime, and derives its legal force from the regime's existence. The normative framework assumes the possibility of replacing the common practices of producing and distributing creative works without changing the proprietary regime. Social change, it is believed, would emerge from simply exercising these rights differently. This Article expresses a skeptical view of this worthy pursuit. While I share Creative Commons' concern with copyright fundamentalism, which inevitably leads to the propertization of everything of value, I am more skeptical of its strategy. This Article explores the legal strategy of Creative Commons and analyzes its potential for enhancing the sharing, distribution, and reuse of creative works. It identifies the limits of a licensing platform, which heavily relies on property and on viral contracts, arguing that the platform may lead to some unintended consequences. Creative Commons as a social movement creates a platform for a wide range of ideologies that share an interest in enhancing access to works. This turns out to be a great advantage for a social movement seeking to gain wider public support. The legal strategy, which empowers owners to govern
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