How You Can Create a Better Word: A Primer on Ethical Intellectual Property| Pt. 1

Background

In March 2017, I began working with CAL on a copyright license. Our intent was to create a license that could be used by anyone to condition the use of their copyrighted works on the user’s *contractually enforceable* promise to protect human rights and the environment across the supply chains in which the copyright is used. This is a three-part post is about the creation of the license, the discovery of some exciting new potential for intellectual property commons and economic activism, and the birth of a new folk hero of the commons named activistartmachine. You can shortcut to our software license here and our Creative Commons Plus license here.

Creation of the License

We set out to create a license that would spark the imagination. Something that would help bring attention to the absurdity of the ongoing crisis of corporate accountability in the United States and around the world, and simultaneously empower people to take action to protect human rights and the environment in new ways. A copyright license is perfect for this kind of thing.

Copyright law works in a somewhat unusual way by making copyright protection automatically cling to pretty much anything it can. The threshold of “originality” that one must meet in order to receive copyright protection is comically low, like at the level of needing to be just a shred more original than what you get when you put a telephone directory together in alphabetical order. So long as you’ve done something more than that, copyright law is out there, ready and willing to make a case for why you should be able to exclude others from replicating or profiting off of whatever you’ve done, even if you don’t register your copyright with the government (though that offers some additional legal power). In this way, copyright can be incredibly empowering. But for the drastically unequal bargaining power that employers have over most copyright producers and the often prohibitively high cost of copyright enforcement, copyright producers could theoretically put any condition they value onto the commercial use of their copyrighted works.

Want to release your software for free into the open source community? Use an open source license from the Open Source Initiative. Want to share your research paper, song, recipe, photo, essay, or pretty much anything other than software, in the commons? Use a Creative Commons license. Open Source and Creative Commons licenses make it easier and cheaper to share software and any other work that copyright can cling to. Efforts surrounding the creation of those licenses have yielded all types of interesting discussions about how and why one should wield a right to exclude at all when it comes to copyright. However, real-world experimentation is still in its nascent stages. And copyright producers who want to use their copyright in economic solidarity with global struggles for corporate accountability are left with few, if any, ready-made options. Towards these latter ends, our licenses provide a fresh start.

Our effort builds on those who have tried to craft various “peace licenses,” “green licenses,” and “freedom licenses” before us (this Creative Commons wiki entry is now mostly a graveyard of links, but helped us learn about prior efforts, as did the Common Good Public License), but we made some evolutionary shifts in our licenses that are worth discussing.   

A primary concern with a license like this is drafting it in a way that makes its terms and conditions clear and enforceable. That sounds like something that should be simple and easy, but it’s surprisingly complex.

Our initial drafts attempted to incorporate other principles, declarations, and conventions of law by reference (e.g., UN Guiding Principles on Business and Human Rights, Universal Declaration of Human Rights, etc.), to promulgate the standards that a business must follow to receive license to use the copyrighted work. A problem that we found with this approach is that such declarations and conventions are generally written to nation-states and are phrased at such abstract levels that would-be licensees could have some legitimate grievances with the ambiguity of terms that we otherwise want to be strong and defensible in the realm of contract law. Contractual conditions that are subjective and difficult to assess or otherwise measure are generally frowned upon in effective contract drafting, so we wanted to figure out something cleaner. (As a side note, if anyone is already familiar with tried and tested contractual provisions that would work for what we’re trying to accomplish, please let us know here!) Moreover, incorporating certain of these documents by reference threatened to unnecessarily alienate potential licensors that might be attracted to the idea of exercising one’s own property rights to create a healthier economy but who have political grievances with the institutions that created the documents, or who would simply prefer to craft conditions on their own terms.  

We opted to peg our standard to common law duty of care. Well actually an expanded duty of care, which means that our licenses use freedom of contract to create license terms that require licensees to accept a duty of care to people and planet across a supply chain. Common law duty of care is the legal obligation one has toward others and the public to take reasonable measures to prevent foreseeable harm. Because common law does not otherwise extend a duty of care to people or planet across the entirety of a supply chain, a contract—or a copyright license—is necessary to create the additional protection.

A duty of care is important because it is a fundamental element of the common law tort of negligence. In the United States, every time someone slips and falls on a wet floor in a department store, it’s only because you don’t have a legally cognizable duty of care to that person in that situation that you’re not getting sued for negligence. The shopkeeper does have a legally cognizable duty of care, and sued they do get. Consumer protection advocates had to fight hard to get courts to understand why it’s in the interest of public welfare to have a strong duty of care between corporation and customer, even at the risk of corporations getting “over sued.” Fortunately, consumer protection has—relatively speaking—generally prevailed in the legal logic of United States common law. Corporations still complain loudly to policymakers about the costs of their duty of care to consumers, but that’s inevitable in a world where publicly traded corporations also have a duty of care to shareholders to maximize shareholder value.  

By expanding the duty of care to all people and planet impacted by the supply chain in which the copyright is used, the licenses can be imagined as casting a jurisdictional forcefield around the supply chain. This forcefield ensures that the same common law protections granted to the consumer are granted to the communities that created a product or service incorporating the intellectual property. After all, why shouldn’t the people who produce the products we consume be afforded the same duty of care, the same protection from harmful economic externalities created by corporate supply chains, as the people who drive the demand for the supply chain in the first place? That’s all our licenses ask of commercial licensees. The licenses don’t put any conditions on non-commercial use other than conditions typical to traditional open-source and Creative Commons licenses.  

In fact, our software license implements all of the same legal logic that a conventional open-source license uses, it simply adds a morals clause to create the expanded duty of care along with a couple of other provisions necessary to make the expanded duty of care meaningful. This includes a provision that allows the recipients of the expanded duty of care to bring a cause of action under the license as a third-party beneficiary to the license in the event the licensee negligently violates its duty to those who were harmed.

We’ve run the license through several different intellectual property lawyers and believe that it’s generally sound, but every user should be mindful that these license terms are experimental and untested in court.

Please also note that the Open Source Initiative has graciously confirmed that despite our software license functioning under open-source legal logic, the inclusion of a morals clause that restricts commercial use in unethical ways precludes us from meeting OSI’s definition of “open source” (i.e., open source licenses are *not* compatible with copyright producers interested in using the economic power generated by their copyright to protect people and planet harmed by the supply chains that use the copyright).  So please don’t refer to our software license as an “open source license.” It’s not that we particularly mind, but we respect that the Open Source Initiative does for its own reasons.

Our general license uses the same morals clause and related provisions for enforceability as our software license and works in tandem with a Creative Commons license. Creative Commons does this cool thing where it encourages people to create “CC+” licenses that work in tandem with Creative Commons’ standardized six main licenses. The idea is that CC+ could be especially appealing for people who want to do exactly what we’re doing, which is to create additional standardized restrictions that some sub-group of copyright producers would want to follow. By adopting unique but standardized terms of restriction, a sub-group of copyright producers can thereby create its own commons wherein copyrighted works are exchanged freely to anyone who agrees to the additional terms created by the CC+ terms. How about a corporate-accountability commons? Or an expanded-duty-of-care commons? That’s essentially what our general license creates.

But would a corporation ever willingly take license to something like this? I’ve spent several months trying to figure this out. Stay tuned to find out what I’ve learned in part 2, where I’ll also discuss the promising potential of using intellectual property commons in new ways for economic activism before turning in part 3 to the birth of activistartmachine.     

Chris Byrnes is an intellectual property attorney, one of CAL’s co-founders, and a current CAL Advisor.