Ethan Smith - The Wall Street Journal

September 20, 2004

All Rights Reserved For more than a year, the music industry has held firm on its zero-tolerance position on online file swapping, suing 4,679 alleged digital pirates to drive its point home.

But now, 16 high-profile artists, many of them signed to the same global music companies that have brought the lawsuits, are participating in a project that will allow music lovers to freely copy and trade some new songs without risking legal retaliation.

Next month, songs by the Beastie Boys, David Byrne and 14 others will appear on a compilation CD whose contents are meant to be copied freely online, remixed or sampled by other artists for use in their own new recordings. "The Wired CD: Rip. Sample. Mash. Share." was compiled by the editors of Wired magazine, of San Francisco, as an experimental implementation of a new kind of intellectual-property license called Creative Commons. About 750,000 copies of the disc are to be distributed free with the magazine's November issue. The disc also will be handed out to audience members at a benefit concert by Mr. Byrne and others tomorrow night in New York.

Creative Commons is named for the nonprofit group that came up with the concept for the license. The Creative Commons license lets the copyright holder spell out which rights it wishes to reserve and which are being waived without waiting for a permission request. That is a contrast to the typical arrangement, in which the copyright holder declares all rights reserved, forcing people who want to use the work to hire lawyers to seek permission.

In this case, all 16 participants are allowing their work to be shared on the Internet. Wired Editor in Chief Chris Anderson describes Creative Commons as a way of declaring that the recordings come with "some rights reserved," as opposed to the traditional "all rights reserved." The new license was developed by Stanford Law School professor Lawrence Lessig, who also contributes to the magazine, which is owned by Advance Publications Inc.

Until now, Creative Commons has been applied only in limited circumstances. Gilberto Gil -- a longtime pop star in Brazil and that nation's minister of culture -- has released some songs under the license's more-permissive terms. And Massachusetts Institute of Technology, of Cambridge, Mass., has released video recordings of many of its courses under Creative Commons licenses.

The fact that Creative Commons is beginning to move forward highlights a growing rift within the music industry: Even as top executives at music companies vow to continue their legal campaign, others are beginning to cast around for compromises with what they see as the inevitable nature of file sharing.

There are no technical differences between the Wired compilation and CDs that carry standard copyright language. Both are simple to copy, or "rip," to computer files using commonly available software. Mr. Lessig said the difference is a legal one. The license offers "creators and artists a simple way to lift a legal burden that sits on their work, to allow others to share it or remix it." In the current case, it essentially represents a promise on the part of artists and their labels not to sue people for copying their music.

The move comes more than a year after the Recording Industry Association of America filed its first lawsuits against people distributing music free over peer-to-peer networks. In the debate over intellectual-property rights that is at the heart of the music-piracy issue, not everyone is so sure it is a good idea for artists to cede any rights. Jay L. Cooper, a music attorney who counts Sheryl Crow among his clients, says he would hesitate to advise a client to issue a song under a Creative Commons license, which he describes as "a blank check." "You don't want to make it for all time," he said. "What if you change your mind in two years?"

If Creative Commons were to catch on more widely, artists might decide to let some of their music be traded free on the Web to promote concerts and related merchandise, as well as to drive sales of CDs and digital tracks protected by standard copyright notices.

In an interview, Mr. Byrne compared online file-sharing services to free public libraries, and pointed out that those institutions once were a new concept, too. He said: "If you were a publisher, you didn't say, 'Oh no, Mr. Carnegie, don't go build those libraries -- it's going to destroy our business.' "

Mr. Byrne is signed to Warner Music Group's Nonesuch Records. He owned the rights to the song he contributed to the compilation, "My Fair Lady," because it had never been included on one of his releases with the label.

Wired's editors spent months shuttling to New York and Los Angeles, working to convince artists, their managers, record labels and lawyers that it was in all their interests to give away some of the valuable intellectual property that the industry has argued for years it must keep under lock and key. In the end, the magazine approached 50 to 60 acts, including Jay-Z, Moby and Coldplay, to find 16 participants. The musicians who participated contributed their efforts, as a promotional gambit.

"The artists were relatively easy to get on board," Mr. Anderson said. "The labels have different priorities. Some of them, once briefed, got it, and some of them never really saw the advantages."

Gary Gersh, the former president of Capitol Records who now runs a small label called Strummer Recordings as a joint venture with Vivendi Universal SA's Universal Music Group, said he viewed the decision as a simple one. Two of his bands -- Le Tigre and the Rapure, both low-profile commercially, but with a lot of critical buzz -- participated in the compilation. For such bands, who don't typically get a lot of commercial airplay, Mr. Gersh said, file-sharing services present "the potential to reach tens of millions more people" than they otherwise would.

Mr. Byrne's manager, David C. Whitehead, said he participated in part because he finds the music industry's responses to the piracy problem "heavy handed" and "reactive." Nonetheless, like representatives of the other artists participating, he kept Mr. Byrne's record label apprised of his client's plans. "It wasn't much of a discussion," he said. "They're a progressive label."

Mr. Anderson said the compilation represented an attempt to demonstrate what a compromise might look like between "rigid and aggressive" copyright law as it exists and "criminality." As things stand now, "there's no middle ground," Mr. Anderson said. "Creative Commons is the best proposal to offer that middle ground."

Even so, neither he nor Mr. Lessig argued that Creative Commons would or even should replace standard copyright notices in all cases. "Obviously, Creative Commons isn't right for everybody," Mr. Anderson said.

One unexpected proponent of Creative Commons is Hilary Rosen, the former chairman and chief executive of the Recording Industry Association of America, on whose watch the trade group formulated its strategy of suing file sharers. Ms. Rosen, who said she first met Mr. Lessig when she debated him at the University of Southern California last year, contributed an essay to the November issue of Wired, endorsing the new form of licensing, at least in limited circumstances.

Ms. Rosen, now a CNBC commentator and consultant, says her endorsement doesn't mean she has changed her stance on piracy; she considers the new license useful as "niche" application. She said, "I've teased Larry that I don't think the major problem in the music business is that thousands of artists are looking for a legal and simplified method to give away their music."

© Copyright 2004 The Wall Street Journal.