ASCAP Going After Creative Commons?

As reported round the blogosphere, ASCAP (which collects public performance royalties on behalf of songwriters) sent around a fundraising email for its lobbying arm:

Creative Commons, Public Knowledge, Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “Copyleft” in order to undermine our “Copyright.” They say they are advocates of consumer rights, but the truth is these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.

The mentions of PK and the EFF come as no surprise. These groups have been arguing that copyright has become unbalanced and should be more limited (whether legislatively or judicially). “Music should be free” is an unfair distortion of their position, but it’s easy to see why some songwriters and their professional associations might feel threatened by any suggestion that copyright goes too far, rather than not far enough. But Creative Commons? An organization that promotes voluntary licensing within the existing framework of copyright? What’s it doing on ASCAP’s hit list?

Part of the answer, I suggested last year in The Ethical Visions of Copyright Law, is that Creative Commons actually occupies a rhetorical ambiguous place in the debates over copyright law and policy. Here’s the key section, at pages 2034-35:

The heart of the issue, then, is that we can read “sharing” either as being allied with the default ethical vision or as allied with the free-as-in-freedom critique of that vision. The default ethical vision seizes on sharing’s generosity, its praise of voluntary engagement, and its refusal to condemn. The critique, on the other hand, points to sharing’s nonmonetary nature and its implicit rebuke of nonsharers. Both readings represent plausible, consistent extensions of sharing’s logic.

This fact has important consequences. It explains some of the (otherwise surprising) unease around the Creative Commons project and why people have criticized it from both sides. We saw above how some critics believe it lacks an agenda and needs one, but there are also people who see in it a hidden agenda for abolishing copyright. These two critiques can’t both be right. They can, however, both sound plausible—because Creative Commons’ “sharing” rhetoric is so ambiguous.

This ambiguity also provides an explanation for some (otherwise puzzling) critiques of Creative Commons that seem to veer over the line into saying that authors who use Creative Commons licenses are doing something wrong. A Billboard article from 2005 quotes an AIDS-stricken musician as saying he wouldn’t have been able to afford his medication if he had used a Creative Commons license: “No one should let artists give up their rights.” This particular critique was factually misinformed,189 but there is an important intuition underlying it.

If Creative Commons is part of a broader critique of the default ethical vision, then it makes a set of ethical claims that authors who write for money and sell their works are behaving unethically. For people who are part of that system—who see themselves as acting ethically when they sell their works—this critique is either incomprehensible, crazy, or profoundly dangerous. Just as the RIAA warns kids that “free” music must be illegal and unethical, there’s a hint of an idea here that authors who choose Creative Commons are betraying other authors and their audiences—they aren’t showing the audience enough respect to give them something worth paying for.

To summarize, there’s a significant ambiguity in Creative Commons’ response to the copyright system. It could be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they don’t need and don’t want to use. It could also be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they shouldn’t have and shouldn’t be allowed to use. In either frame, its licensing strategy is a natural response designed to encourage a healthier balance. But the latter frame, let us be clear, is a challenge to the default ethical vision of copyright itself, not merely a critique of authorial behavior made from within that vision.