Tailoring copyright to social production

Theoretical Inquiries in Law

Volumn 12, Issue 1, 2011, Pages 309-347

  Elkin Koren, Niva ^a  

^a NONE

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EID: 79951543059     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1270     Document Type: Article

References (147)

1. Pamela Samuelson, Does Copyright Law Need to Be Reformed?, 50 COMM. ACM 19 (2007).
2. Pamela Samuelson, Randall Davis, Mitchell D. Kapor&J.H. Reichman, A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308 (1994).
3. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 125 S. Ct. 2764, 2775 (2005), Justice Souter: The tension between the two values is the subject of this case, with its claim that digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, and many people (especially the young) use file-sharing software to download copyrighted works. This very breadth of the software's use may well draw the public directly into the debate over copyright policy .. the ease of copying songs or movies using software .. is fostering disdain for copyright protection.
4. John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994, available at http://www.wired.com/wired/archive/2.03/economy.ideas.html;
5. Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, FIRSTMONDAY, Aug. 2, 1999, http://firstmonday.org/htbin/cgiwrap/bin/ ojs/index.php/fm/article/view/84/594: "We are predicting the future in a very limited time sense: we know that the existing rules, which have yet the fervor of conventional belief solidly enlisted behind them, are no longer meaningful."
6. Neil Weinstock Netanel, Impose a Noncommercial Use Levy to Allow Free Peer-to-Peer File Sharing, 17 HARV. J.L. & TECH., 1, 35-44 (2003);
7. WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW AND THE FUTURE OF ENTERTAINMENT 199-258 (2004);
8. Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263, 311-24 (2002);
9. Glynn S. Lunney, The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act, 87 VA. L. REV. 813, 851-58, 910-20 (2001); (Pubitemid 33656653)
10. Richard M. Stallman, Copywrong, WIRED, July 1993, available at http://www.wired.com/wired/archive/1.03/1.3-stallman.copyright.html;
11. Elec. Frontier Found., A Better Way Forward: Voluntary Collective Licensing of Music File Sharing - "Let the Music Play" White Paper (Feb. 2004), http://w2.eff.org/share/collective-lic-wp.pdf.
12. Such rights include, for instance, the exclusive right of making available which was tailored to cover online distribution by access. European Parliament & Council Directive 2001/29/EC, The Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society, art. 3, 2001 O.J. (L 167) 10, 16. Another issue is the expansion of copyright to cover any attempt to circumvent digital copyright protection systems. See Digital Millennium Copyright Act, 17 U.S.C § 1201 (2006); European Parliament & Council Directive 2001/29/EC, supra, art. 6.
13. For Further discussion, see Pamela Samuelson & Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 WM. & MARY L. REV. 439 (2009).
14. YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 99-106 (2006);
15. CLAY SHIRKY, HERE COMES EVERYBODY: THE POWER OF ORGANIZING WITHOUT ORGANIZATION 25-54 (2008);
16. DON TAPSCOTT & ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 10-11 (2006);
17. JEFF HOWE, CROWDSOURCING: WHY THE POWER OF THE CROWD IS DRIVING THE FUTURE OF BUSINESS 71-130 (2008).
18. Niva Elkin-Koren, User-Generated Platforms, in WORKING WITHIN THE BOUNDARIES OF INTELLECTUAL PROPERTY 111 (Rochelle Dreyfuss, Diane L. Zimmerman, & Harry First eds., 2010).
19. TAPSCOTT&WILLIAMS, supra note 8.
20. Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 DUKE L.J. 1245, 1260 (2003). Benkler argues that social production has become "a common modality of producing valuable desiderata at the very core of the most advanced economies-in information, culture, education, computation, and communications sectors.
21. " See Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 YALE L.J. 273, 278 (2004) [hereinafter Benkler 2004].
22. See TAPSCOTT&WILLIAMS, supra note 8, at 10-11: Most people were confined to relatively limited economic roles, whether as passive consumers .. or employees trapped deep within organizational bureaucracies ... In all, too many people were bypassed in the circulation of knowledge, power, and capital, and thus participated at the economy's margins. Today the tables are turning. The growing accessibility of information technologies puts the tools required to collaborate, create value, and compete at everybody's fingertips. 13 Users are also able to manage an online profile on a social network or communicate with others via social networking sites. According to the IDATE-TNO-IViR study, searching and e-mailing are the dominant usages on the internet. In 2006, "watching film, TV or video clips" and "ratings and reviews" have become popular usages on the internet. Generally, the most dynamic activities are related more to entertainment content than communication usages, although these usages are also significant. The data shows an impressive increase in the use of social platforms between 2006 and 2008.
23. See IDATE, TNO & IViR, USER-CREATED-CONTENT: SUPPORTING A PARTICIPATIVE INFORMATION SOCIETY 50-53 (2008).
24. BENKLER, supra note 8 at 106-16.
25. See IDATE, TNO & IViR, supra note 13, and accompanying text.
26. BENKLER, supra note 8, at 99-106.
27. Yochai Benkler, Coase's Penguin, or, Linux and the Nature of the Firm, 112 YALE L.J. 369, 381-84 (2002) [hereinafter Benkler 2002], argues that the more "computers and network connections become faster, cheaper, and more ubiquitous" so the social production becomes much more significant. According to Benkler, id. at 404-06, social production emerges due to several features of the networked information economy: the object of production (information); the dramatic decline in cost of the means of production (cheap processors); the low cost of communication; and its availability to creative talent.
28. BENKLER, supra note 8, at 99.
29. Id. at 106.
30. See, e.g., SHIRKY, supra note 8, at 253-59, 293-321;
31. BENKLER, supra note 8, at 99-127, 294-97
32. Kevin Kelly, New Socialism: Global Collectivist Society Is Coming Online, WIRED, May 22, 2009, available at http://www.wired.com/print/culture/ culturereviews/magazine/17-06/nep-newsocialism.
33. I use the term "culture industry" as it was used by the Frankfurt School theorists Max Horkheimer and T. W. Adorno to describe the commercial mass culture which marked the industrialization and commercialization of culture under capitalist relations of production. See THEODOR ADORNO& MAX HORKHEIMER, The Culture Industry: Enlightenment as Mass Deception, in DIALECTIC OF ENLIGHTENMENT 120 (John Cumming trans., new ed. 1993) (originally published as Dialektik der Aufklarung in 1944).
34. MANUEL CASTELLS, COMMUNICATION POWER 55 (2009): It is mass communication because it can potentially reach a global audience, as in the posting of a video on YouTube, a blog with RSS links to a number of web sources, or a message to a massive e-mail list. At the same time, it is self-communication because the production of the message is self-generated, the definition of the potential receiver(s) is self-directed, and the retrieval of specific messages or content from the World Wide Web and electronic networks is self-selected.
35. See, for instance, the sensation created by Oren Lavie's clip "Her Morning Elegance" which broke YouTube records. Oren Lavie, Her Morning Elegance, YOUTUBE (Jan. 19, 2009), http://www.youtube.com/watch?v=2-HXUhShhmY. "Her Morning Elegance" also earned a 2010 Grammy Award nomination for "Best Short Form Music Video." On November 2009, Lavie was announced the winner of the ASCAP Foundation Award for Best Lyricist.
36. See The Am. Soc'y of Composers, Authors & Publishers, Two ASCAP Lyricists Named Recipients of the 2009 ASCAP Foundation Sammy Cahn Award (Oct. 30, 2009), http://www.ascap.com/playback/2009/10/FOUNDATION/Sammy-Cahn.aspx.
37. Halbert emphasizes the potential social and political value of a creative audience who can challenge meaning and create the meaning of culture content by posting or transforming content. Debora Halbert, Mass Culture and the Culture of the Masses: A Manifesto for User-Generated Rights, 11 VANDERBILT J. ENT. & TECH. L. 921 (2009);
38. see also Niva Elkin-Koren, Making Room for Consumers Under the DMCA, 22 BERKELEY TECH. L.J. 1119, 1138 (2007) (describing the role of the consumer-author and the consumer-participant in generating culture).
39. See CASTELLS, supra note 21.
40. Neil Netanel, New Media in Old Bottles? Barron's Contextual First Amendment and Copyright in the Digital Age, 76 GEO. WASH. L. REV. 101, 113 (2008).
41. See Elkin-Koren, supra note 9, at 120.
42. See id.; see also James Grimmelmann, Virtual World Feudalism, 118 YALE L.J. POCKET PART 126 (2009);
43. OECD, PARTICIPATIVE WEB: USER-CREATED CONTENT (2007), http://www.oecd.org/dataoecd/57/14/38393115.pdf.
44. Lauren A. Gelman, Privacy, Free Speech, and 'Blurry-Edged' Social Networks, 50 B. C. L. REV. 1315 (2009).
45. Trebor Scholz, Market Ideology and the Myth of Web 2.0, FIRST MONDAY, Mar. 3, 2008, http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/ view/2138/1945;
46. see also Christian Fuchs, Information and Communication Technologies and Society: A Contribution to the Critique of the Political Economy of the Internet, 24 EUR. J. COMM. 69, 82 (2009). Fuchs argues that users who generate content on advertisement-based free online platforms are subject to surveillance and become a commodity sold to advertisers. Personalized advertisement, he argues, is an expression of the "society of control," which activates individual users to continuously participate in and integrate themselves into the structures of exploitation. Thus, he argues, "[t]he category of the prosumer commodity/produser commodity does not signify a democratization of the media towards participatory systems, but the total commodification of human creativity."
47. In his book, Benkler defines social production as including content "that is not based on exclusive proprietary claims, not aimed toward sales in a market for either motivation or information, and not organized around property and contract claims to form firms or market exchanges." BENKLER, supra note 8, at 105.
48. Moreover, many classic examples of social production, such as Free Software and Wikipedia, rely on copyright for governance, even though the licensing scheme of free software (the General Public License (GPL)) is using copyrights in a subversive manner.
49. See Steven J. Horowitz, Designing the Public Domain, 122 HARV. L. REV. 1489 (2009) (arguing that social production generates some added value such as a sense of belonging, relationships, identity and community).
50. See IDATE, TNO & IViR, supra note 13, at 150-54;
51. Benkler 2004, supra note 11, at 279-81, 321-28.
52. Diane Leenheer Zimmerman, Authorship Without Ownership: Reconsidering Incentives in a Digital Age, 52 DEPAUL L. REV. 1121, 1136-37 (2003).
53. Individuals, Benkler argues, "are not monolithic agents." They are motivated by monetary rewards, but also by social and psychological needs. BENKLER, supra note 8, at 98-99.
54. Id. at 92-99.
55. Horowitz, supra note 32, at 1499-503. These three intrinsic motivations are based on the self-determination theory of psychologists Edward Deci and Richard Ryan. Edward L. Deci & Richard M. Ryan, The "What" and "Why" of Goal Pursuits: Human Needs and the Self-Determination of Behavior, 11 PSYCHOL. INQUIRY 227 (2000). Horowitz proposes three strategies for promoting the public domain: (1) empowering the individual, (2) connecting to a community, and (3) maintaining fairness in the system. Horowitz, supra note 32, at 1499.
56. Id. at 1499, 1500-01.
57. Horowitz therefore concludes that "[t]o best support intrinsic incentives to produce information, the public domain ought to empower individuals, connect them within a community, and maintain a fair system." Id. at 1503.
58. Naren B. Peddibhotla & Mani R. Subramani, Contributing to Public Document Repositories: A Critical Mass Theory Perspective, 28 ORG. STUD. 327 (2007).
59. I use "incentives" "motives" and " motivations" interchangeably throughout the Article.
60. See Moglen, supra note 4;
61. Benkler 2002, supra note 16, at 424-25.
62. See MARTIN BUBER, Education, in BETWEEN MAN AND MAN 89 (Ronald Gregor Smith. trans., 1955) (arguing that humans are born with a capacity of creative powers, and a desire to create something from nothing);
63. see also Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 WM. & MARY L. REV. 513, 522-27 (2009) (analyzing creators' own accounts of their creative experiences and discussing authors' self-reported experiences of creativity).
64. See Zimmerman, supra note 34.
65. In a widely cited blog, Bosworth describes a two-stage reward system among Wikipedians: regular users, who gain small rewards for basic participation, and obsessive administrators who compete to gain power. See Posting of Alex Bosworth to SWiK, Why Wikipedia Works, http://swik.net/social- Software+user:alex (Apr. 13, 2006).
66. See Andrea Ciffolilli, Phantom Authority, Self-Selective Recruitment and Retention of Members in Virtual Communities: The Case of Wikipedia, FIRST MONDAY, Dec. 1, 2003, http://firstmonday.org/issues/issue812/ciffolilli/index. html. Ciffolilli distinguishes between personal and social motivations of Wikipedians. According to Ciffolilli, social motivations involve a "desire to take part in the production of a collective good, a need for belonging, a need to support a specific community."
67. Id.; LEE RAINIE, JOHN HORRIGAN, BARRY WELLMAN & JEFFREY BOASE, PEW INTERNET & AMERICAN LIFE PROJECT, THE STRENGTH OF INTERNET TIES (2006), available at http://www.pewinternet.org//media//Files/Reports/2006/PIP-Internet- ties.pdf.pdf;
68. Barry Wellman et al., The Social Affordances of the Internet for Networked Individualism, J. COMPUTER-MEDIATED COMM., Apr. 2003, http://jcmc.indiana.edu/vol8/issue3/wellman.html.
69. Erickson and Herring introduced the notion of "persistent conversation." See Thomas Erickson & Susan C. Herring, Persistent Conversation: A Dialog Between Research and Design, in 4 HICC PROCEEDINGS OF THE 38TH HAWAII INTERNATIONAL CONFERENCE ON SYSTEM SCIENCES 106 (2005), available at http://www.computer.org/portal/web/csdl/doi/10.1109/HICSS.2005.491 (arguing that persistent conversation carries social and ethical consequences deriving from the creation of permanent records of interactions that used to be ephemeral). (Pubitemid 41543983)
70. Caroline Wiertz & Ko de Ruyter, Beyond the Call of Duty: Why Customers Contribute to Firm-Hosted Commercial Online Communities, 28 ORG. STUD. 347, 349-76 (2007).
71. See, e.g., Ciffolilli, supra note 46 and accompanying text; Sheizaf Rafaeli & Yaron Ariel, Online Motivational Factors: Incentives for Participation and Contribution in Wikipedia, in PSYCHOLOGICAL ASPECTS OF CYBERSPACE: THEORY, RESEARCH, APPLICATIONS 243 (A. Barak ed., 2008).
72. Rafaeli and Ariel argue that "[o]ne of the strongest motivations to participate and contribute to a community is users' sense of community." See Rafaeli & Ariel, supra note 50, at 257. They use a definition of a "sense of community" offered by McMillan and Chavis. David W. McMillan & David M. Chavis, Sense of Community: A Definition and Theory, 14 J. COMMUNITY PSYCHOL. 6, 9 (1986) ("[A sense of community] is a feeling that members have of belonging, a feeling that members matter to one another and to the group, and a shared faith that members' needs will be met through their commitment to be together.").
73. See Naren B. Peddibhotla & Mani R. Subramani, Contributing to Public Document Repositories: A Critical Mass Theory Perspective, 28 ORG. STUD. 327 (2007), available at http://oss.sagepub.com/content/28/3/327.full.pdf+html.
74. Sheizaf Rafaeli, Tsahi Hayat & Yaron Ariel, Knowledge Building and Motivations in Wikipedia: Participation as "Ba," in CYBERCULTURE AND NEW MEDIA 51 (Francisco J. Ricardo ed., 2009).
75. Sheizaf Rafaeli, Daphna Raban & Gilad Ravid, How Social Motivation Enhances Economic Activity and Incentives in the Google Answers Knowledge Sharing Market, 3 INT'L J. KNOWLEDGE& LEARNING 1 (2007).
76. See Facebook, Social Plugins, http://developers.facebook.com/plugins (last visited Oct. 1, 2010).
77. See Nielsen Study: Nielsenwire,What Americans Do Online: Social Media and Games Dominate Activity (Aug. 2, 2010), http://blog.nielsen.com/nielsenwire/ online-mobile/what-americans-do-online-social-media-and-games-dominate-activity/ .
78. LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY (2008).
79. Gal Oestreicher-Singer & Lior Zalmanson, Paying for Content or Paying for Community? The Effect of Consumer Involvement on Willingness to Pay on Media Web Sites (Jan. 14, 2010) (unpublished manuscript), available at http://ssrn.com/abstract=1536768.
80. See OECD, supra note 27 (describing several business models for monetizing UGC: charging viewers for services, advertising, licensing of content and technology to third parties, and selling goods and services); IDATE, TNO & IViR, supra note 13, at 98-118. According to this study, most UGC services rely on advertising revenues. Forecasts indicate that in 2010, the Internet will be the number three medium in terms of advertizing investments worldwide (behind TV and the written press). Other business models include subscription fee and pay-content. Users can earn an income from their creation either directly, through the sales of their content, or indirectly, by establishing a professional reputation through their postings. According to a recent study, most bloggers have some way to generate revenue from their blogs: advertising; search ads; display ads; affiliate marketing; paid posting; being a spokes-blogger; rich media ads. Posting of Dave White to Technorati, Blogging For Profit, http://technorati.com/blogging/article/day-4-blogging-for-profit/ (Oct. 13, 2009).
81. See Kaj Arno, Dual Licensing - A Business Model from the Second Generation of Open Source Companies, in HOW OPEN IS THE FUTURE? ECONOMIC, SOCIAL AND CULTURAL SCENARIOS INSPIRED BY FREE AND OPEN SOURCE SOFTWARE 479 (Marleen Wynants & Jan Cornelis eds., 2005). But see Ashlee Vance, Open Source as a Model for Business Is Elusive, N.Y. TIMES, Nov. 30, 2009, at B1.
82. Matthew Creamer, Optimize Me: A Reporter's Journey into the World of SEO and SEM, ADVERTISING AGE, Dec. 3, 2007, available at adage.com/digital/article? article-id=122344 (describing the use of social media platforms by a journalist to optimize his online exposure).
83. Advertising services such as Google AdSense automatically deliver targeted ads to blogs and personal homepages, sharing the collected revenues from advertising with the hosting website. Google, Google AdSense, https://www.google.com/adsense/ (last visited Oct. 1, 2010).
84. Social leaders are determined based on users' "social graph," that is the number of connections and the volume of communications on social network sites. See Michael R. Solomon, The Truth About What Customers Want: They Think Your Product Sucks-But That's Not a Bad Thing, FIN. TIMES, Nov. 5, 2008, available at http://www.ftpress.com/articles/article.aspx?p=1252171;
85. Ellen P. Goodman, Peer Promotion and False Advertising Law, 58 S.C. L. REV. 683, 669-706 (2007).
86. Some users' input is incorporated into the presentation of traditional media, such as CNN's iReporter. Another example is Amazon's Mechanical Turk (MTurk), which creates a crowdsourcing marketplace where users can sign-up for tasks that cannot be performed by computers (Human Intelligence Tasks - "HIT") for monetary payments. Requesters post tasks (called HITs) such as choosing the best among several photographs or writing product descriptions. Providers browse among existing tasks and complete them for a monetary payment set by the Requester. See Amazon Web Service, Amazon Mechanical Turk, http://aws.amazon.com/mturk/ (last visited Oct. 1, 2010).
87. Eward L. Deci, Richard Koestner & Richard M. Ryan, A Meta-Analytic Review of Experiments Examining the Effects of Extrinsic Rewards on Intrinsic Motivation, 125 PSYCH. BULL. 627 (1999).
88. Consider, for instance, the decision of the video storage Metacafé to cancel its Producer Rewards Program, which offered monetary rewards per 1000 views to producers of videos which passed Metacafé's strict guidelines and achieved at least 20,000 worldwide views at a minimal ranking. Metacafé Termination of the Producer Rewards®?Program (May 6, 2007), http://blog.metacafe.com/?s=rewards. Earlier changes to the program raised doubts regarding the intentions of the platform.
89. See Mark 'Rizzn' Hopkins, Metacafe Changes Producer Rewards; Users Complain, MASHABLE, Feb. 12, 2008, http://mashable.com/2008/02/12/ metacafepayout-changes/.
90. See Scholz, supra note 29.
91. See infra notes 113-18 and accompanying text.
92. See Xiaoquan (Michael) Zhang & Feng Zhu, Intrinsic Motivation of Open Content Contributors: The Case ofWikipedia (Dec. 2006) (paper presented at theWorkshop on Information Systems and Economics (WISE), Chicago, Illinois, Dec. 9-10, 2006), available at http://digital.mit.edu/wise2006/papers/3A-1-wise2006. pdf (analyzing the dynamics among contributors, using textual analysis, to show that the collaborative process in Wikipedia enhances incentives to contribute).
93. SHIRKY, supra note 8, at 50-51.
94. BENKLER, supra note 8, at 99-106.
95. Jessica Litman, Sharing and Stealing, 26 COMM. & ENT. L.J. 1 (2004).
96. A user posting on her own blog might have to use a hosting service and an Internet Access Provider, as well as search engines and location tools to enhance the content exposure. But even webblogs might be considered a platform. First, a blog in itself may host UGC (comments by others) and in this sense it might also function as an online platform. Second, even though it is relatively easy to install blogging software on a server to enable blogging, using a blog hosting service like Blogger makes it easier (by removing the technical burden of maintaining a hosting account and a software application).
97. SHIRKY, supra note 8, at 49. The focus on groups is somewhat misleading. Indeed, the human desire to interact, communicate, or validate each others' experiences is innate. At the same time, however, one must be careful in distinguishing between a group as a distinct category-namely an entity that is independent of its particular members, and a simple interaction among individuals (either intimate or public).
98. Id. at 49-50 ("changing your behavior to synchronize with people who are changing their behavior to synchronize with you").
99. Id. at 53. Shirky argues that this type of group effort, where groups act on behalf of, and share consequences for, all of its members, is the hardest to achieve and is still relatively rare.
100. See Helen Nissenbaum, Values in Technical Design, in ENCYCLOPEDIA OF SCIENCE, TECHNOLOGY AND ETHICS, at lxvi (Carl Mitcham ed., 2005). But see SHIRKY, supra note 8, at 46 (arguing that platforms are neutral and facilitate uncoordinated group action: "Flickr is simply a platform; whatever coordination happens comes from the users and is projected onto the site.").
101. For instance, Picasa, Google's Web Album which allows organizing, editing, tagging and sharing photos, does not allow users to transfer their tagged pictures with the metadata from Picasa to other image hosting sites such as Flickr. For Facebook's strategy see Fred Vogelstein, Great Wall of Facebook: The Social Network's Plan to Dominate the Internet - and Keep Google Out, WIRED, June 22, 2009, available at http://www.wired.com/techbiz/it/magazine/17-07/ff- facebookwall.
102. For the plurality of norms applied to UGC, see Niva Elkin-Koren, Governing Access to Users-Generated-Content: The Changing Nature of Private Ordering in Digital Networks, in GOVERNANCE, REGULATIONS AND POWERS ON THE INTERNET (E. Brousseau, M. Marzouki & C. Méadel eds., forthcoming 2011).
103. At a more theoretical level, it has long been argued that creative processes are not played out in isolation - that authors always build upon the input of previous authors and that creative works are, in fact, meaningless outside of a social context. This view of creativity as a joint effort of a community to generate information flows within a cultural matrix is assuming a more visible presence in the online environment, as reflected by initiatives such as Wikipedia.
104. See Rafaeli & Ariel, supra note 50, at 258.
105. Id.
106. David A. Hoffman & Salil Mehra, Wikitruth Through Wikiorder, 59 EMORY L.J. 151 (2009) (describing the evolution of this institution from an informal exchange of views, through mediation, and into an Arbitration Committee which applies fact-finding procedures and generates decisions based on policy and law, which constitute a virtual Wiki-common law).
107. Posting by Mark Zuckerberg to Facebookblog, Update on Terms, http://blog.facebook.com/blog.php?post=54746167130 (Feb. 17, 2009).
108. After submitting the appeal, the person who left the controversial feedback is then asked to justify himself. The appellant has a chance to respond to the statement, after which the case is put before a jury of eBay members who vote on the case. The jury is authorized to remove the unfair feedback from the site. See eBay, Community Court FAQs, http://www.ebaycourt.com/cc/FAQ.jsf (last visited Aug. 9, 2010).
109. See Rafaeli, Hayat & Ariel, supra note 53 (arguing that Wikipedia is a dynamic, virtual knowledge-building community and not simply a repository of information).
110. PediaPress offers a wiki-to-print feature which allows users to create a printed version of their selection of Wikipedia entries, with a table of contents or category lists, and bound with a color cover. See Robin Wauters, Wikipedia Offers Printon-Demand, TECHCRUNCH, Feb. 27, 2009, http://techcrunch. com/2009/02/27/printyou-favorite-wikis-as-books-courtesy-of-wikipedia-and- pediapress/.
111. Bertelsmann, one of the largest German publishing houses, announced that it would publish a printed edition of selected entries from Wikipedia Germany most commonly used search terms. See Noam Cohen, A Book with 90,000 Authors, N.Y. TIMES, July 19, 2008, available at http://bits.blogs.nytimes.com/2008/07/ 19/abook-with-90000-authors/.
112. 17 U.S.C. § 101(1) (2006).
113. 17 U.S.C. § 101.
114. Courts interpreting the notion of employee and the scope of employment under the work-made-for-hire doctrine did not rely on employment law and developed a separate standard of interpretation. See Michael D. Birnhack, Who Owns Bratz? The Integration of Copyright and Employment Law, 20 FORDHAM INTELL. PROP. MEDIA& ENT. L.J. 95 (2009).
115. Steven Hetcher, User-Generated Content and the Future of Copyright: Part One, Investiture of Ownership, 10 VAND. J. ENT. & TECH. L. 884, 863 (2008) (arguing that UGC cannot be considered a work-made-for-hire since the users of social media platforms are not working for the platform).
116. The status of these volunteers for the purpose of employment benefits was raised in class action lawsuits that were filed against AOL regarding About.com over their volunteer labor force. Thousands of users were acting as Community Leaders on AOL during 1997-2005 when the program expired. In 1999 a group of former AOL Community Leaders ("CLs") filed a class action lawsuit against AOL seeking the payment of minimum wages for the valuable work they performed for AOL. Overtime pay was also being sought for CLs who worked over 40 hours a week. See Hallissey v. Am. Online, Inc., No. 99-CIV-3785, 2006 U.S. Dist. LEXIS 12964 (S.D.N.Y. Mar. 20, 2006) (holding that AOL Community Leaders, who were unpaid volunteers, could qualify for compensations under the Fair Labor Standards Act of 1938 (FLSA) 2006).
117. See Scholz, supra note 29. This somewhat Marxist approach views the relationship between platform and users as a matter of subordination and exploitation. It assumes that power derives from control over the means of production, and since users inhabit a privately-owned infrastructure, they are subject to the authority of the owners. What complicates this picture, however, is the fact that the means of generating and distributing content also belong to the users. Servers, nodes and networks (and also interface and data) are owned by platforms and users alike.
118. Jeff Howe, for instance, introduced the term "crowdsourcing" to describe the outsourcing of jobs, traditionally performed by designated employees, to an undefined, generally large group of people in the form of an open call. See HOWE, supra note 8.
119. 17 U.S.C. § 101.
120. Hetcher argues that in those cases users' contributions have an "overall value that is immeasurably greater than the sum of its parts," and such works should be treated under copyright law as jointly authored works, compilations, collective works, and works made for hire. See Hetcher, supra note 92, at 886.
121. 17 U.S.C. § 201(a).
122. See 1 MELVILLE B. NIMMER& DAVID NIMMER, NIMMER ON COPYRIGHT § 6.10(B) (2008).
123. Each co-owner may license any of the rights listed under the Copyright Act, without the consent of the other joint owners, provided that she shares any profits made from such licensing with the other co-owners. According to the House Report accompanying the 1976 Copyright Act, this meant that joint owners of a copyright each have "an independent right to use or license the use of a work, subject to a duty of accounting to the other co-owners for any profits." H.R. REP. NO. 94-1476, at 121 (1976).
124. See, e.g., LAWRENCE LESSIG, FREE CULTURE: HOW BIGMEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 184-99 (2004);
125. Litman, supra note 72, at 13-23;
126. Diane Leenheer Zimmerman, Living Without Copyright in a Digital World, 70 ALB. L. REV. 1375, 1376-77 (2007).
127. Elkin-Koren, supra note 9.
128. ThomasW. Merrill, Property and the Right to Exclude, 77 NEB. L. REV 730 (1998);
129. Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849 (2007).
130. Niva Elkin-Koren, Exploring Creative Commons: A Skeptical View of a Worthy Pursuit, in THE FUTURE OF THE PUBLIC DOMAIN 325 (P. Bernt Hugenholtz & Lucie Guibault eds., 2006).
131. Viral licensing was, in fact, an innovative legal mechanism for facilitating entrance into this type of collective action, applying the license to any derivative work which is based on the original. See Creative Commons, Licenses, http://creativecommons.org/about/licenses/ (last visited Oct. 1, 2010) (Creative Commons Share Alike license); Free Software Foundation, GNU General Public License v2 s. 2(b), http://www.gnu.org/licenses/gpl.html (last visited Oct. 1, 2010); Free Software Foundation, GNU General Public License v3 s. 5, http://www.gnu.org/licenses/gpl.html (last visited Oct. 1, 2010).
132. The public consultation process was coordinated by the Free Software Foundation. See Free Software Foundation,Welcome to GPLv3, http://gplv3.fsf.org/ (last visited Oct. 1, 2010).
133. Creative Commons CC-BY-SA authorizes the copying, distribution, display and performance of the work and the making of any derivative work provided that appropriate credit is granted (Attribution) and that any subsequent derivative work will be subject to the identical license that governs the original work (ShareAlike). See Creative Commons, supra note 105.
134. Wikipedia entries were subject to the GFDL Version 1.2 "or any later version published by the Free Software Foundation." Version 1.3 of the GFDL, which was jointly announced by the FSF and the Wikimedia Foundation, included a new section that authorized Massive Multi-author Collaboration Sites, such as Wikipedia, to relicense their content under CC-BY-SA license before August 1, 2009. See Matt Lee, FSF Releases New Version of GNU Free Documentation License (Nov. 3, 2008), http://www.fsf.org/news/fdl-1.3-pr.html.
135. The migration to the new licensing scheme became effective after a general vote by all content contributors who had made at least 25 edits to Wikipedia before March 15, 2009. See Mike Linksvayer, Wikipedia Community Vote on Migration to CC-BY-SA Begins Now (Apr. 13, 2009), http://creativecommons.org/ weblog/entry/13967.
136. Elkin-Koren, supra note 9.
137. See Diane L. Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 THEORETICAL INQUIRIES L. 29 (2011) (drawing on the insights of social science studies which explore the human motivation to engage in creative activity);
138. Tushnet, supra note 43, at 517-18;
139. Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151 (2007).
140. Creative Commons made attribution a legal requirement which is included in all of their licenses. See Creative Commons, supra note 105;
141. see also Catherine L. Fisk, Credit Where It's Due: The Law and Norms of Attribution, 95 GEO. L.J. 49, 91 (2006) ("The experience of organizations devoted to a robust public domain suggests that even those devoted to minimizing intellectual property rights still insist on attribution.").
142. See supra notes 59-64 and accompanying text.
143. See, e.g., Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1155-56 (N.D. Cal. 2008).
144. See supra notes 65-68 and accompanying text.
145. Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984); see Jessica Litman, The Sony Paradox, 55 CASE W. RES. L. REV. 917, 957, 960-61 (2005). A privilege codified in the Audio Home Recording Act of 1992, 17 U.S.C. §§ 1001-10 (1994), authorizes consumers to record music for personal noncommercial use. See id. § 1008.
146. Litman assumes that "[t]here's broad consensus that even unauthorized enjoyment is not and should not be illegal unless it either crosses the line into exploitation or otherwise interferes with the copyright owners' opportunities to exploit their works. The difficulty is in telling the difference." Jessica Litman, Lawful Personal Use, 85 TEX. L. REV. 1871, 1908 (2007). Litman argues that we need to define commercial use narrowly enough and also avoid assuming the unlawfulness of personal use simply because it competes with a copyright owner's plan to exploit the work. Id.
147. For the complexity involved in distinguishing between commercial and noncommercial use, see the study by Creative Commons: Creative Commons, Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use" (Sept. 14, 2009), http://wiki.creativecommons.org/ Defining-Noncommercial.