For creators, an argument for alienable rights December 22, 2002 - Boston Globe By D.C. Denison The architect Robert Venturi once famously advocated for ''both/and'' as opposed to ''either/or.'' The ''both/and'' approach embraces the complex and the contradictory: something can be both good and awkward, big and little, closed and open. Las Vegas, for example, is both over-the-top tacky and refreshingly exuberant. Last week's release of version 1.0 of the Creative Commons license could be viewed as simpatico with the ''both/and'' spirit: It is a way for all kinds of publishers (music, book, etc.) to create works that are both ''open and free'' and ''closed and copyrighted.'' The trick is in the subtleties that the licenses allow, an alternative to the dichotomy between the traditional copyright license, which says, basically, ''all rights reserved,'' and the open source/ free software GNU General Public License, which says ''no rights reserved.'' The Creative Commons licenses allow creators to offer shades of permission like ''noncommercial use,'' which allows people to reproduce and share your work as long as they don't make money on it. If a commercial entity is interested in your work, the license says, essentially, ''let's make a deal.'' So the idea is ''some rights reserved.'' Lawrence Lessig, the Stanford Law School professor who recently argued a copyright-liberating case before the Supreme Court (the ruling will probably come in the spring), is one of the forces behind Creative Commons. The Berkman Center for Internet & Society at Harvard Law School also helped get the project off the ground. Last week's release was Creative Commons's first official product, but the real significance was not the licenses themselves, but the promise of more of the same to come. The inspiration for Creative Commons, obviously, is the open source software movement, which continues to have a surprising impact on the corporate landscape. Linux, the free Unix-type operating system originally created by Linus Torvalds with the assistance of developers around the world, is now considered the most serious competitor to Microsoft. Developed under the GNU General Public License, the source code for Linux is freely available to everyone. Companies like Red Hat, Netscape, Apple, Sun, IBM, and Real Networks are all now leveraging some level of open source programming. The Creative Commons licenses are an attempt to migrate that open source approach out of the software field. ''We're trying to transfer some of the lessons from the open source and free software to the content world,'' said Creative Commons executive director Glenn Otis Brown. ''The ideas could be applied equally to nonsoftware like music, film, text, weblogs, and photographs.'' Examples? Creative Commons has a bunch of them on its Web site (www.creativecommons.org). And the most interesting ones are those that incorporate some sort of mix of free and pay licensing. One of the simplest models is the photographer who encourages free distribution of his work, with credit, for noncommercial use. But when a magazine art director expresses an interest, the photographer starts negotiating a fee. So his work is both free and pay. The power of these incremental models will be lost on companies and individuals with established brands and reputations. They can enforce the traditional copyright and collect the dough. But for aspiring content creators, the Creative Commons licenses are a way to use the strength of free distribution to possibly enable some pay options down the road. ''The message is that you can now be clever about leveraging one right against the other,'' Brown said. Exactly how to leverage these rights will increasingly be a focus of business strategists. Already the Boston Consulting Group has been testing the possibilities of the open source movement by conducting surveys of the open source community. Bob Wolf, the Boston Consulting Group consultant who helps run the survey, believes that business has a lot to learn from the dynamics that drive the development of software like Linux. Significantly, a conversation with Wolf quickly ranges out of the software arena to include open source-influenced business models like the ones successfully used by bands like Phish, which allows the free taping of its concerts and the free distribution of those live recordings, but charges for concert tickets and T-shirts. That kind of intellectual property horse trading is exactly what Creative Commons is hoping to enable, and as the gradations between free and pay continue to multiply, the ''both/and'' possibilities for business will increase as well. As Creative Commons's Brown put it, ''If you're clever about how you leverage your rights, you can cash in on openness.'' Copyright © 2002 Boston Globe Companies