Some rights reserved
How alternative copyright licensing could revolutionize indie publishing

By Annalee Newitz

CORY DOCTOROW TURNED his first novel into an experiment. He convinced heavy-hitting science fiction publishing house Tor Books to release his Down and Out in the Magic Kingdom under a Creative Commons copyright license that stipulates only some rights are reserved. Tor published it using what's called an "Attribution-NoDerivs-NonCommercial" license. What that means is that people can make as many copies of the novel as they want as long as they give attribution to Doctorow as the author, don't create derivative works, and don't sell any copies they make.

When Tor put the novel on sale last year, Doctorow's CC license allowed him to release it as a free e-book on his Web site. Readers could download the novel and pass it around to as many friends as they wished. Despite conventional publishing wisdom, which holds that the more rights you retain, the more profit you'll make, the book sold incredibly well. Entertainment Weekly called it one of the 10 best novels of the year; it was made a New York Times notable book; and Doctorow's latest CC licensed novel, Eastern Standard Tribe, is flying off the shelves. Indeed, Doctorow was so pleased with the entire process that he released the paperback version of Down and Out in the Magic Kingdom under an even less restrictive CC copyright that allows people to do almost anything they want with the book as long as it's not for profit.

A few years ago it was rare to hear authors and publishers talking about alternative copyrights. But thanks to success stories like Doctorow's and the efforts of copyright reform groups like the Creative Commons organization, the publishing industry is beginning to warm to the idea of "some rights reserved." According to activist attorney Lawrence Lessig, one of the founders of the C.C. project, the group most likely to benefit from alternative copyrights is the independent publishing industry. "For small publishers, this is a cheaper way to get name and idea recognition," he says. With their tiny or nonexistent marketing budgets, small presses, indie magazines, and bloggers can use alternative copyrights as a way of releasing free content to the public and advertising their wares in the process.

More to the point, alternative copyrights are an easy way to codify and formalize what many nonmainstream publishers are already doing. Progressive glossy Mother Jones, for example, allows nonprofits to make up to 100 copies of any article in the magazine. Popular technical publisher O'Reilly releases its books into the public domain after 28 years (copyright can last for up to 95 years, and sometimes more, so this is quite a radical alternative). The Bay Guardian, like many alternative weeklies, reverts copyright back to the author on the day of publication. That means I can choose to resell this article today, or republish it on my Web site under a copyright that stipulates you can copy it as many times as you like and create hip-hop songs out of it – without asking my permission.

Dan Dixon, director of subsidiary rights at UC Press, says, "We have authors ask for open licenses all the time. I've been licensing rights for UC Press for 22 years, and if [the license] won't affect our revenue stream, we're responsive." The problem is that there are no simple, predefined ways to request an alternative copyright, and each author has to negotiate a specific contract agreement with Dixon. He notes, "I think it would be easier if we had a codified license [like the CC license]."

What are the alternatives?

Authors and publishers can choose from several kinds of already-existing alternative copyrights. CC licenses, which are the most widely known and adaptable, have been used for everything from novels and music to photographs and movies. At the C.C. organization's Web site (www.creativecommons.org), visitors can read cartoons and legal documents that explain how all the CC licenses work. You can also fill out a short form to figure out which CC license is best for you. When you're finished with the form, you're presented with a CC license, complete with legal language that you can hand over to a publisher.

According to Lessig, the impetus behind the CC licensing scheme was to "eliminate the middleman" who haunts traditional copyright schemes.

People who want to reproduce traditionally copyrighted content or modify it for their own uses can't do so without contacting the author or copyright holder directly. Often it takes months to get permission, and occasionally publishers will ask for an exorbitant amount of money, which means some important works cannot be circulated freely. Lessig says, "We want to make it easy for people to rely on freedoms of content without dealing with this incredibly complicated system built by lawyers for lawyers standing between the author and the consumer."

Many alternative copyrights grew up in the academic and technical realms, where, Dixon points out, "authors have an idea of openly sharing their findings with the rest of the world." Because these authors want their work to be circulated freely, and hopefully built on, they aren't fussy about people duplicating or using their writing.

Similarly, technical authors – particularly those who write software – want others to share and improve upon their work. For them, it's much easier to have an open license that stipulates people can make copies without pestering the busy authors or publishers with calls or e-mails asking permission.

The influential GNU Free Documentation License was developed in the late 1980s by the Free Software Foundation. According to the FSF Web site (www.gnu.org), "The GNU Free Documentation License is a form of copyleft intended for use on a manual, textbook or other document to assure everyone the effective freedom to copy and redistribute it, with or without modifications, either commercially or noncommercially." The Open Source Initiative (www.opensource.org/licenses), a group devoted to the development of software released under open licenses, lists dozens of excellent alternative copyright licenses on its Web site, some of which have been in use for two decades.

Bill Pollock, the owner of small technical publishing house No Starch Press, says he prefers alternative copyrights because he believes in putting the authors' wishes first. No Starch has been in business for 10 years, and profitable for 6. Pollock will publish 20 to 25 books this year, several under various kinds of open copyrights. His willingness to work with alternative copyrights allowed him to bring out the popular book Hacking the Xbox, which was already available online for free; it's also one of the reasons civil liberties activist Seth Schoen will be publishing his long-awaited book about Microsoft's controversial "trusted computing" scheme with No Starch. "My goal is to publish books by interesting people," Pollock explains. "If they want to use an open copyright, that's fine with me. It doesn't affect sales at all. I see this as a way of improving our business." He agrees with Lessig that circulating a book online can boost reader awareness and ultimately lead to more sales.

Zines and indies, anarchists and bloggers

Of course, alternatives to copyright have been popular among anarchists and zinesters for decades. Jason McQuinn, who works for indie magazines Alternative Press Review and Anarchy, says both magazines have an "anticopyright" policy, and "if an author wants to copyright something, it's up to them." An anticopyright statement (sometimes prefaced with the words "@nticopyright" or "no copyright") often reads, "This book may be freely pirated and quoted."

While publishers like No Starch and UC Press use open copyrights to encourage academic inquiry and generate buzz for their products, a magazine like Anarchy has an explicitly political, anticorporate agenda. For radicals, copyright is part of a corrupt system of private property in which owners hoard resources and cultural producers cannot enjoy or profit from the fruits of their labor. An anticopyright is a way of protesting this system: it's a statement about how knowledge should be shared freely, rather than commodified. Moreover, because corporate publishers can own copyright for up to 95 years, the public is deprived of free access to works that many educators and artists would argue are part of our cultural heritage.

There's a profound historical connection between alternative copyright schemes and the independent publishing industry. During the 1950s and '60s, independent book publishers such as City Lights and Grove Press attempted to create alternatives to the (highly censored) mainstream presses by releasing books whose content reflected the experiences of cultural outsiders: homosexuals, beatnik idealists, drug users, and people of color. Later, the zine boom of the 1970s and '80s foregrounded alternative forms of production. Zinesters created their work using desktop publishing software and copy machines. They didn't need corporate magazine companies to make their voices heard. To speak out against corporate culture and neoconservatism, many zine creators shunned traditional forms of publishing and distribution, preferring instead to send copies of their hand-stapled creations out by mail to interested readers and bookstores.

Today alternative copyrights are inspiring new practices and new bursts of creativity in alternative publishing. Just as desktop publishing technology helped spearhead the zine revolution, the Web has proved an ideal medium for experimenting with alternatives to traditional copyright. People in the software industry were early adopters of alternative copyrights, and online publishers followed in their footsteps. Many bloggers, like Oakland's infamously prolific Justin Hall (www.links.net), have embraced CC licenses because the very nature of their medium requires people to link to their work and spread it across the Web.

Reviving the indies

Other online publications are open to the idea of alternative copyrights too. Scott Rosenberg, an editor at independent online magazine Salon.com, says, "We'd be open to working something reasonable out with any writer who asks, since in principle we think Creative Commons is doing good work and we'd like to help advance it."

Some publications take a more radical stance. Online publisher Public Library of Science already has a CC license in place for anything published in its journals. PloS founder Michael Eisen has said he hopes PLoS can go head to head with corporate competitor Reed-Elsevier, a large consortium that owns many of the biggest scientific journals and uses traditional copyright to force schools and researchers to pay through the nose for access to information about the latest discoveries by their colleagues.

But many indie writers and publishers feel it's important to hold onto traditional copyrights, even though they embrace alternatives too. Rebecca Blood, author of The Weblog Handbook: Practical Advice on Creating and Maintaining Your Blog and publisher of blog Rebecca's Pocket, says, "Traditional copyright law seems like the easiest and clearest way to protect my rights to longer works." Derek Powazek, publisher of online magazine Fray (www.fray.com), says, "I'm a traditional copyright kind of guy. I like all my rights reserved. Of course, all that really means is that people should ask permission. With all the hoo-ha about copyright, people seem to forget that you can always just ask, and usually people say yes."

Greg Wharton, publisher of San Francisco-based press Suspect Thoughts, says he's leery of the idea of alternative copyrights. "I'm always open to new ideas, but I'm not sure that a CC license would work for a book from the business standpoint. I just don't understand how it would work."

C.C. organization founder Lessig says he understands Wharton's concerns. But, he contends, "For a small publisher who can't afford ads in the New York Times, a CC license is less risky. It's cheap advertising." Because the Internet allows publishers to circulate their wares for free, their books become advertisements for themselves. "Think about how we use electronic texts right now," Lessig continues. "I download a book and start reading it. If I like it, I'm going to want to buy it. There are far more people who will like it and buy it than people who will read it for free on their computers."


February 25, 2004