Licensing is co-opted by corporations, reproducing the exploitation inherent in copyright.

Insofar as the socialist perspective is taken to be hostile to the existence of intellectual property and private property more generally, Moore’s argument might be taken as a challenge to it. But this is to confuse a socialist approach with a libertarian one. The libertarian absolutist case against IP is consistent with the movement’s anti-statist trappings, and depends on the inference that because intellectual property is a debased, false form of property, it therefore does not fall within the purview of the state’s property-defending mission.

A socialist, however, can recognize that law and the state are contested terrain, and that replacing the regime of capitalist private property requires erecting, at least in the interim, an alternative form of socialized property, in order to defend the commons against the persistent efforts of the capitalist class to enclose and appropriate it. The struggle over traditional physical property provides many examples of this. Land trusts that are available to the public are an alternative to private ownership. Worker coooperatives and B Corporations, which are dedicated to a social purpose rather than only maximizing profit, are being pursued as alternatives to the traditional corporate form.

This is an appealing model for a potentially non-capitalist approach to the cultural commons that isn’t simply hostile to the legal system, but attempts to use it as a mechanism for contesting the narrow capitalist definition of property. But as we attempt to forge new property forms, new contradictions and unintended consequences will arise. In embracing a superficially appealing new licensing model, we could end up accidentally imprisoning ourselves in something just as bad as or worse than what we have now.

Take, for example, a project that Andrews mentions, the Creative Commons license. This is, as he notes, a legal property form just as much as traditional copyright. However, where copyright gives an owner the right to keep knowledge closed, Creative Commons is designed to facilitate creators who want to ensure their creations remain open, while at the same time making sure that they receive credit for them. One of the more common versions is the CC BY license, which allows unlimited distribution and repurposing as long as the original creator receives credit in any new version or copy. Another, CC BY-SA, adds the provision that those who redistribute or remix something must “license their new creations under the identical terms,” a provision with the potential to virally spread Creative Commons protection to other non-covered work. Going further in a superficially anti-capitalist direction, CC BY-NC-SA also prohibits commercial use, while CC BY-NC-ND also prohibits the creation of modified and derivative works.

These licenses might seem like a promising ways to protect the rights of creators and keep work out of the hands of corporate content monopolists. But they also pose contradictions and compromises for those who would like the commons to be as open and accessible as possible, but who recognize that a short-run strategy of total IP rejectionism is susceptible to exploitation by capitalist interests. Creative Commons demonstrates this, as does the simpler GNU Public License (GPL) for software.

The attribution and share-alike components of Creative Commons are the least problematic, since they enforce an ethic of author credit and mutual sharing that is fundamental to the operation of a non-capitalist commons. The non-commercial and no-derivatives provisions, however, turn out to have some problematic unintended consequences, as explained in a set of two critiques published by the Free Culture Foundation. Marking a work for non-commercial use sounds like just a way to draw a line between capitalist exploitation and socialist sharing, and the no-derivatives clause can be defended as a way of protecting the integrity of a creator’s work. But NC licenses don’t distinguish between a small-time DJ sampling a song and a massive streaming service making millions from advertising. Moreover, they replicate traditional copyright’s grant of a commercial monopoly to the original creator. The ban on derivative works, meanwhile, is only justified if IP law is regarded as a safeguard on the natural rights of the creator, rather than a utilitarian and pragmatic mechanism for ensuring a free and open cultural commons.

Another issue is that new licenses and property forms may not take into account all of the people who have a need for rights with respect to a given cultural object. Several years ago, a Texas family sued the Creative Commons Corporation along with Virgin Mobile Australia, charging them with libel and invasion of privacy. Virgin had found a CC-licensed image taken by a youth counselor, which included an image of the family’s teenage daughter, and used it in an advertising campaign without the family’s permissions. In this case, the CC license replicated a problem that Anne Elizabeth Moore identifies in traditional copyright: the rights of (disproportionately male) creators of images are protected, while the (more often female) people who become the content of the image are not.