User-Created Content and the Demise of Metaphor

Creative works with a CC license are genuinely part of the promise of user-generated content, because CC-specifying copyright owners have taken care to say exactly how their works can and cannot be remixed, reused and reproduced.

That’s a sentence from this post by USA Today’s Angela Gunn, which I read because Larry Lessig noted that the post is very smart. Angela Gunn is writing in the context of Larry’s transition out of the Chair’s position at CC in favor of Joi Ito, an occasion that was marked recently by a passing of a literal, virtual Second Life torch. So much for metaphor, she writes.

Metaphor hasn’t really gone anywhere, of course, and I know that Angela Gunn knows that, but I’m a little puzzled by this summation of Creative Commons. SINAL and all that, but still: Creative Commoners cannot “exactly how their works can and cannot be remixed, reused and reproduced.” Users of CC-licensed works still get to rely on the copyright baseline. The idea/expression distinction, section 102(b) and other limitations in the statute, and fair use all still apply to CC-licensed works, and CC licenses are pretty clear on all that. CC licenses can clear up ambiguity at the edges of those things (noncommercial fair use, for example), but the most important thing that CC licenses do is provide clearance for uses that are above and beyond the copyright baseline. Angela Gunn’s formulation carries the unfortunate connotation that CC licensing is a creator-protective, disabling device, and that connotation makes her phrasing ring false. How does CC fulfill the promise of user-created content if users don’t have flexibility in using CC-licensed works? In fact, CC licensing is a creator-protective, enabling device. Metaphor is important here: Users are downstream as well as upstream.

Congrats to Larry, by the way, for concluding an amazing run as chair of CC.