957304

research-article2020
NMS0010.1177/1461444820957304new media & societySinnreich et al.

Article

new media & society

1–25
Access shrugged: The decline © The Author(s) 2020
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DOI: 10.1177/1461444820957304
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Aram Sinnreich , Patricia Aufderheide ,

Maggie Clifford and Saif Shahin
American University, USA

Abstract
This article maps patterns of interest in key terms associated with copyright and online
culture in the US context. Using exploratory factor analysis of data from Google Trends,
authors examined patterns in keyword searches between 2004 and 2019. The data
show three distinct periods of interest. The first period consists of utopian, cause-driven
search terms; the second marks a rise and eventual decline in creatively motivated,
maker-fueled searches; and the third is characterized by rising utilitarian and institutional
interest in accessible copyrighted material. These data show empirically that the public
curiosity about alternatives to strict copyright have changed during the study period.
Earlier, more idealistic movements contrast with later, more practical approaches.

Keywords
Copyleft, copyright, creative commons, digital media, fair use, law and society, open
license, open source, remix, search trends

Introduction
How has public understanding and curiosity about copyright policy in the United States
shifted since the heady days of the “copyleft” in the early aughts? In this article, we
engage with this topic, because copyright policy in the Internet era has become increas-
ingly associated with issues of broader social import, including free speech, innovation,
and the political process. Thus, the public imaginary—the place copyright issues hold in
popular consciousness—is relevant to how and whether the public emerges as a mean-
ingful stakeholder as culture, technology, and policy coevolve.

Corresponding author:
Aram Sinnreich, School of Communication, American University, 4400 Massachusetts Ave NW,
Washington, DC 20016-8007, USA.
Email: aram@american.edu
2 new media & society 00(0)

Our concern rests on several related theoretical understandings. First, shared cultural
values are essential both to public identity and public action (Anderson, 1991). Second,
public participation in policy contributes an important range of stakeholder perspectives:
consumers, citizens, and those such as parents and scholars who look to future genera-
tions’ interests. These voices provide an important counterweight to the institutional
interests of government and corporate entities, eventually constituting what is loosely
referred to as “the public” (Dewey, 1927). These premises have been integrated theoreti-
cally into a perspective often referred to as “law and society,” as exemplified and codi-
fied in the work of Ewick and Silbey (1998), who argue that “legal consciousness is a
process” characterized by “participation—through words and deeds—in the construction
of legal meanings, actions, practices and institutions” (p. 247). Thus, the law is not
merely a fixed entity consisting of what is written in statute, but is a social phenomenon
created by the ways in which people understand and interact with it. Finally, as we have
argued in previous work (Sinnreich, 2019a), these dynamics can be observed empirically
in the coevolution of copyright and cultural expression—a never-ending feedback loop
between the letter and the spirit of intellectual property law that plays a determinative
role in the development of new cultural, technological, and regulatory trends.
Based on these theoretical perspectives, as well as the existing paucity of empirical
research on copyright policy generally (Sprigman, 2017), we aim to investigate the
evolving relationship between the public imagination surrounding copyright and digital
culture during the past two decades, by analyzing quantitative trends in public curiosity
regarding both sets of related issues.
Our scholarly investigation originated in anecdotal observation. As scholars who have
tracked public understanding of copyright law for decades, we have noticed striking
shifts in discourse, even as new legal, technological, and economic structures have
emerged. Our purpose in this article is to test empirically whether those perceived discur-
sive shifts, as seen from our own extensive experience with the topic, are paralleled by
records of broad public engagement with the issues. Our research thus contributes to law
and society scholarship from a theoretical perspective, and to understanding of the inter-
play between statutory law and cultural processes.
We explore this question by examining the rise and fall of different US-based search
terms for copyright- and digital culture-related issues through Google Trends, consider-
ing available data from the earliest entries in 2004 through 2019. We interpret the changes
reflected in these data in relation to historical changes in technological affordances,
social movements, and institutional investments. We begin the article with an overview
of trends in US copyright policy conflicts as relevant to the time period. We then describe
our methodological approach to the analysis of copyright- and digital media-related
terms in Google Trends, and conclude by interpreting the results in the context of law and
society scholarship.

Copyright policy conflicts: copyright expansion and extension

Because copyright monopolies act as private censorship by design, the law includes
exceptions and limitations to that monopoly power (Sinnreich, 2019b). This ensures the
constitutionality of copyright in the American context, because under the First Amendment
Sinnreich et al. 3

the government is forbidden to create policies that unnecessarily impede freedom of

speech (Kaplan et al., 2005). The fundamental tension between copyright and free speech
has been recognized since Jefferson and Madison debated its constitutional foundations
(Hyde, 2010). But the 1976 Copyright Act’s expansion in the scope, power, and term of
copyright, followed by the rise of tape-based and then digital media and communications
technologies throughout the 1980s and 1990s, amplified those tensions.
Large copyright holders fought to protect their legacy business models from techno-
logical disruption by doubling down on copyright enforcement as a principal bulwark
against competition and industrial change (Decherney, 2012; Lardner, 1987; Litman,
2006: 89–101; Patry, 2009: 2–39; Sinnreich, 2013). They also involved themselves in
Internet governance, to extend copyright protection online (Bridy, 2012, 2016); major
copyright-holding industries developed elaborate public awareness campaigns regard-
ing the perils to consumers and creators of any unlicensed copying (Gillespie, 2009).
Creative practices facilitated by digital, networked technologies were stalled, changed,
or buried as a result of copyright questions or challenges (Aufderheide et al., 2019;
Sinnreich et al., 2020).
Consumers—owners of tape decks, videocassette recorder (VCRs), computers,
modems, and eventually smartphones—increasingly confronted copyright challenges
merely by using the native features of their devices. People who had never thought about
copyright in abstract terms experienced concretely the tradeoff between copyright pro-
tection and innovation, between protection and expression. Many consumers found that
they had to learn the limits and functions of “fair use,” the long-standing (since 1841)
copyright doctrine that allows unpermissioned use of copyrighted material under some
circumstances (Aufderheide and Jaszi, 2018). With the 1999 arrival of widespread online
peer-to-peer file sharing in the form of Napster, followed by industry pushback, consum-
ers faced the novel reality of criminal prosecution for downloading available computer
files. In short, copyright became personal for many consumers.

Copyright policy conflicts: pushback

In turn, hardware associations, which benefited from consumer demand for devices
with copying affordances, pushed back against attempts to ban VCR recording, forming
the Home Recording Rights Coalition (Lardner, 1987). Similarly, the Computer and
Communications Industry Association resisted policy proposals that would block inter-
connection or force them to encrypt communications, and telecommunications interests
resisted mandated encryption, as well as attempts to hold them contributorily liable for
users’ copyright infringement. This work involved industry and treaty negotiations, leg-
islative lobbying, and public campaigns that countered those of the media industries
(Herman, 2013).
Nonprofit interests also actively engaged the public. Librarians, whose work rests on
copyright exceptions and limitations, worked with lawyers, legal scholars, and nonprof-
its to protect these safety valves for free expression, and joined ranks with hardware
manufacturers (and, informally, telecommunications providers) in the Digital Future
Coalition (DFC), between 1996 and 2001. Their principal policy agenda was to block the
copyrighting of databases and to challenge the Digital Millennium Copyright Act
4 new media & society 00(0)

(DMCA; Pub. L. 105–304), an update to copyright law that extended rights holders’
privileges in the digital realm by criminalizing any circumvention, for any purpose
including legal ones, of technical protection measures (Gillespie, 2007; Herman, 2013;
Litman, 2006). In the same year the DMCA was passed, the length of copyright terms
was extended by another 20 years, to an unprecedented term of an author’s life plus an
additional 70 years, through the Copyright Term Extension Act (Pub. L. 105–298).
Databases, however, remained uncopyrighted in the United States.
Members of consumer, industry, library, and research constituencies have continued
to be active in copyright discourse and policy, involving themselves in treaty negotia-
tions, in regulatory processes at the Copyright Office, and even working directly with
creators. Twelve professional communities of creators have, with the help of copyright
scholars, developed codes of best practices in fair use to guide creative and professional
communities discouraged from employing exemptions already available to them but
underused. They too have played an active role in regulatory processes, defending fair
use rights (Aufderheide and Jaszi, 2018).
These collective efforts to raise public awareness and influence the trajectory of copy-
right policy and practice also influenced the agenda of private foundations and think
tanks. Some of the most active advocates and organizers for liberal access to content
during the DMCA policy-making process went on to spearhead organizations that would
build on their successes. Digital advocacy organization Public Knowledge, founded in
2001 by DFC activist Gigi Sohn and New America Foundation’s David Bollier, put cop-
yright at the center of its agenda. The Electronic Frontier Foundation, founded in 1990
by free speech and open technology advocates John Gilmore, John Perry Barlow, and
Mitch Kapor, was persuaded by DFC members of the centrality of copyright to its
agenda, and embraced it by the end of the 1990s (Gillespie, 2007; Herman, 2013; Litman,
2006). The conflicts over copyright during the 1980s and 1990s also inspired many legal,
communication, and humanities scholars to explore the cultural consequences of copy-
right policy, with a focus on the tensions between legacy business models on the one
hand, and innovative cultural, technological, and entrepreneurial ideas on the other hand
(Boyle, 1996; Fisher, 2004; Lessig, 2006; Litman, 2006; McLeod, 2005; Samuelson,
1996, 1997, 1998; Vaidhyanathan, 2001).
In short, the digital copyright conflict breached public awareness through a combina-
tion of warring public campaigns between industry and public interest activism, outreach
from emerging nonprofits and legislative conflicts, increased scrutiny by scholars and
public intellectuals, and, as we shall see, funding by private foundations for public
awareness campaigns.

Copyleft and copyfight

The “copyleft,” a term used intermittently in the 1970s but incorporated into copyright
policy discourse by “free software” advocate and open licensing pioneer Richard M.
Stallman in 1985, emerged in the 1990s and 2000s as a kind of counter-cultural move-
ment. Some copyleft adherents embraced electronic civil disobedience to resist legislative
copyright extensions, such as releasing copyrighted material without authorization
through peer-to-peer file sharing networks. The documentary series Eyes on the Prize, for
Sinnreich et al. 5

instance, was released by the student organization Downhill Battle on a file sharing plat-
form called BitTorrent because consumer-level purchasing was being held up by permis-
sions requirements (Aufderheide and Jaszi, 2018: 67). Artists, activists, and scholars
organized public events with titles such as “Illegal Art” to create counter narratives to
copyright maximalism (McLeod, 2005: 145–147) and conducted pranks such as Kembrew
McLeod’s (limited) trademarking of the term “freedom of expression” (McLeod, 2005).
This movement was fueled by the charismatic leadership of law professor Lawrence
Lessig, who argued that “free culture” (a riff on Stallman’s “free software”) was imperiled
by copyright itself (Lessig, 2004). He popularized this term in order to draw an actionable
analogy between the battles roiling the software industry in the 1980s and those affecting
media and entertainment around the turn of the 21st century, thus assembling a broader
coalition of anti-maximalism copyright advocates.
By the early 2000s, the “copyfight” (to invoke activist Cory Doctorow’s term) had
become the subject of campus activism (Penenberg, 2005), late night comedy segments
(The Daily Show, 2000), and congressional hearings (C-Span, 2000).
A critical aspect of copyleft activism was the attempt to build an alternate legal uni-
verse in which, to evoke Stewart Brand’s famous phrase, information could really be
free. Throughout the early 2000s, foundations funded efforts to promote and normalize
terms such as “the information commons” to foment widespread concern about copy-
right maximalism and to rally support for expansions of the public domain (Bollier,
2001, 2002; Bollier and Watts, 2002; Boyle, 2008). The hope of copyleft activists was
that their movement would gradually become the new norm and overtake the bounded
world of copyrighted material (Bollier, 2008). Special licenses that would permit sharing
on a widespread, proactive basis were promoted as an emancipatory tool. These included
both “free software” licenses like the GPL (“General Public License,” an open software
license created by Stallman in 1989), and “free culture” licenses such as those offered by
Creative Commons in conjunction with the Center for the Public Domain.
Ambitious new projects to spur more open access to cultural expression also emerged
around the turn of the century. Open CourseWare advocates, initially based at MIT, cre-
ated templates for universities across the United States and Canada to offer syllabi and
course materials on the World Wide Web. The Association of Research Libraries, an
organization promoting the interests of university and other research libraries in the
United States and Canada, launched the global group Scholarly Publishing and Academic
Resource Coalition (SPARC) in 1998 to promote open access in research and education;
it became and remains as an umbrella organization for promoting open access policies
institutionally. Open Educational Resources (OER) is a library-led movement to make
course materials—especially textbooks—easier to access, as well as less expensive.
Many international nonprofit organizations and representatives of emerging economies
have unified around the slogan “access to knowledge,” or A2K, in their efforts to influ-
ence legislation, international treaty design, and regulation toward greater flexibility in
copyright policy (Krikorian and Kapczynski, 2010; Suber, 2012).
Efforts to expand access to cultural expression (e.g. books, music, films, and photog-
raphy) otherwise locked in by copyright enjoyed active support from major private
foundations, including the Ford, Rockefeller, MacArthur, Mellon, McCormick and
Sloan foundations. These organizations funded efforts to create open-access materials
6 new media & society 00(0)

and to encourage greater use of exceptions and limitations to copyright. Major private
foundation funding, for instance, sustained 20 years of work at the Center for Media &
Social Impact and the law school at American University to expand access to fair use
(Aufderheide and Jaszi, 2018). Work to expand copyright alternatives also garnered
tech sector funding, such as support for Creative Commons from the Center for the
Public Domain and the Linux Foundation; Google’s support for academic researchers,
which has helped to document the efficacy of fair use as a boon to innovation and the
generation of new creative products; and the Hewlett Foundation, which has a particular
focus on OER.
In the years since then, however, many of the organizations of that era have faltered,
foundations have closed or moved on to other issues, and leading scholars and activists,
such as Lawrence Lessig and Siva Vaidhyanathan, have moved on to other issues. The
underlying tensions between legal principles and cultural practices, however, continue to
be highly relevant and largely unresolved at the turn of the 2020s. Digital intermediaries
have consolidated and, subject to both government regulation and the threat of expensive
litigation, rely increasingly on opaque algorithms, protected by trade secrecy, to police
the communications of their user bases for potential infringement (Gillespie, 2018;
Sinnreich, 2018). ICANN registries such as Donuts apply copyright and trademark filter-
ing to the management and use of all domain names of their registrars, depending on
rights holders to provide them with filtering data as “trusted notifiers” (Bridy, 2016;
Malcolm et al., 2017). Articles 15 and 17 of the EU Copyright Directive promise only to
intensify the linkage between copyright monopoly protection concerns and Internet gov-
ernance, as copyright protection is built deeper into the communications infrastructure.
Finally, as Internet-based industries mature, economic power continues to centralize in
the hands of fewer and fewer digital intermediaries, and entrenched rights holders exert
ever greater influence over communications regulation (Internet Society, 2019).

Methodology
In this study, we measure empirically the changing nature of online public interest in
issues surrounding copyright and open access to digital information. Specifically, we
analyze 15 years of monthly data from Google Trends to track interest levels among US
users in various search terms surrounding copyright policy and digital media. Google
Trends is a tool for measuring the popularity of a search term on Google’s search engine.
Instead of delivering search volumes—the number of times a search term has been
used—Trends reports variations in the use of the term over a time period on a normalized
scale. In recent years, it has become a popular means of understanding the level of public
interest in domains ranging from health (Ellery et al., 2008) to conservation (Nghiem
et al., 2016) to private consumption (Vosen and Schmidt, 2011).
We take Trends data as an illuminating (though limited) indicator of public interest in
and concern about copyright issues, which is relevant to questions of public participation
in policy discourse.
Drawing upon research cited earlier that chronicles the evolution of copyright policy
debates, as well as personal experience as copyright policy scholars and advocates, the
two lead authors developed an initial list of potential search terms associated with
Sinnreich et al. 7

cultural practices, as well as legal tools and tactics, for mitigating maximalist copyright
enforcement in a digital context. We then used Trends to narrow our list of search terms
by eliminating those that failed to satisfy Google’s baseline volume requirement for
returning results throughout the full-time frame of analysis. Our final list included the
following 15 terms: “A2K,” “copyleft,” “Creative Commons,” “fair use,” “free culture,”
“free software,” “GNU,” “GPL,” “mashup,” “OER,” “open access,” “open license,”1
“open source,” “public domain,” and “remix.” We believe this list represents a diverse,
if not comprehensive, collection of concepts related to the past two decades of digital
copyright conflicts noted earlier.
We chose to use data from Trends—a free, web-based analytical tool offered by
Google that reflects relative query volume of specific search terms employed by its
users—as a proxy for public curiosity about, interest in, and framing of the issues sur-
rounding copyright and digital culture over time. The use of Trends by scholars has been
growing consistently in recent years. As Troumbis (2017) notes, hundreds of studies
using Google Trends to assess public curiosity and interest have been published since
2008 in a wide variety of research domains, including economics, public health, and
biodiversity, with consistent growth at about 59% per year. The utility of Trends to reflect
public curiosity and interest has been demonstrated by repeated comparisons with public
opinion surveys as well (e.g. Troumbis, 2017: 1502).
Trends provides data showing the popularity of a given search term relative to itself
over time. This tool makes data retrieval simple, but there are critical limitations to how
the tool retrieves and presents information, and understanding these limitations is a nec-
essary prerequisite to accurate interpretation (Mitchell et al., 2017; Stocking and Matsa,
2017; Troumbis, 2017). Data resulting from an inquiry in Trends do not reflect the total
volume of searches for a given term. Results are derived from a random sample of total
searches for that term during the time period indicated (Rogers, 2016). Frequency of use
is reported on a scale from 0 to 100, where 100 represents the highest volume of searches
for that term over the specified time period. A query for only one search term in Trends,
therefore, does not produce one-to-one comparability in frequency or popularity with
other separately queried search terms. Trends allows for direct comparison of up to five
search terms, and so this feature was not useful to produce direct comparisons of our 15
terms over the full period of our analysis. Independent queries can, however, be used to
compare overall trends in search popularity. For instance, comparing one term’s peaks
and troughs relative to those of another term can yield useful analytical insights regard-
ing the directionality of public interest. Comparing usage trends for individual queries
forms the basis for our analysis in this article.
We collected and analyzed monthly Trends data on our list of terms to establish the
full arc of each term’s search prevalence over the maximum time allowable by the soft-
ware, 2004–2019. Because Trends software recognizes the IP address of users, it will
present identical results, produced through its random sampling methodology, for any
given term to any given user if they query that term multiple times from the same IP
address. Thus, in order to increase the accuracy of the Trends data in our corpus, we
pulled three unique data sets for each of our search terms from different IP addresses
associated with different machines at a public library. We then calculated the mean
8 new media & society 00(0)

average of these three queries for each month of data related to each term and used these
values as the basis for our comparative analysis.
Trends has additional limits that affected our methodological and analytical decisions.
Because its query interface does not permit Boolean parameters on phrases within quotes,
for example, we were unable to evaluate the popularity of a phrase such as “free soft-
ware,” in a way that distinguished between “free as in beer” and “free as in speech,” to
use Stallman’s famous distinction (DiBona and Ockman, 1999). We eventually decided
to include this particular term, but remained aware that it likely included a consistent
quotient of Internet searchers who had no interest in copyright-related information.
Once we had monthly search volume data for each term in our lexicon over the 15-year
period from the beginning of Trends’ data archive in 2004–2019, these data were subjected
to exploratory factor analysis to reveal their interrelationships. Factor analysis is a statisti-
cal process that “disentangles complex interrelationships among (social) phenomena into
functional unities or separate or independent patterns of behavior” (Rummel, 1988: 3). It
does so by measuring degrees of correlation among variables and clustering highly corre-
lated variables into dimensions or “factors.” A factor is thus a set of variables that are
empirically interrelated and is expected to represent a construct—although it is up to the
researcher to recognize the conceptual significance of emergent factors. Operationally, a
factor is identified by factor loadings—representing the correlations of different variables
with each factor (Kline, 1994). Variables that simultaneously have high loadings on one
factor but low loadings on other factors are taken to constitute a group or family.
Factor analysis is commonly used in communication research for a variety of pur-
poses—such as identifying broader dimensions of news coverage from coding categories
in content analysis (e.g. Kiousis, 2004) or coalescing a large number of survey items into
a simpler set of constructs (e.g. Kohring and Matthes, 2007). In this study, we used factor
analysis to convert longitudinal search trends for our 15 terms into factors representing
internally correlated and conceptually coherent “families.”
Our goal was to determine whether there existed statistically defensible relationships
between usage trends that could establish families of terms whose popularity over time
waxed and waned in a way that was correlated. We used R, an open source computing
environment, to conduct exploratory factor analysis. The number of factors to be
extracted was determined using the nFactors package (Raiche and Magis, 2019). Next,
we used factanal(), a base R function, to carry out factor analysis with varimax rotation.
The resulting groups of correlated terms were then analyzed to establish the underly-
ing discursive and contextual reasons uniting them. We postulated that the similarities in
the pattern of searches are related to social meaning-making processes surrounding cop-
yright law. Our analysis considered (1) the discourses of the time around these terms at
their height, (2) the goals/purposes of social movements around copyright reform with
which they are connected, and (3) the related institutions that coordinated, funded, or
encouraged use of these terms. Consistent with our law-and-society theoretical perspec-
tive, we elected to apply an interpretive analysis to the groups of correlated terms, rather
than attempting to impose preexisting categorical relationships from legal and cultural
theory on them. Thus, while a legal scholar like Pierre Leval (1990) or Lawrence Lessig
(2004) may have a very definite idea about what the term “fair use” means, and what its
relationship to other terms are, that is less relevant to our investigation than the emergent
Sinnreich et al. 9

trends in the data showing how searches for “fair use” covaried with searches for terms
like “open license” and “copyleft.”
Finally, although Trends does not allow direct comparison of more than five terms at
once, we took three “data snapshots”—one in the first month of our analysis, one in the
final month, and one in the middle (January 2004, October 2011, and April 2019)—in
order to establish an imprecise, but directionally illustrative, sense of the relative popu-
larity among all 15 terms we queried at those times. We achieved this by comparing the
five least popular terms according to average Trends returns in a given month, setting
baseline relative popularity values for each. Then we compared the two most popular
terms of those five to the next three least popular terms on the list, extrapolating the rela-
tive popularity of the terms in the new batch to those in the first batch through simple
multiplication. We repeated this process until we had comparable search popularity fig-
ures for each term. This process allowed us to generate an approximate sense of the rela-
tive search popularity of each term at the beginning, middle, and end of our period of
analysis. While this method is useful to provide a rough understanding of scale—show-
ing that “free software” is a far more popular term than “A2K,” for instance—neither the
underlying data nor the extrapolative arithmetic processes we applied to them are precise
enough to generate a more granular analysis over the full-time period.

Results
In our exploratory factor analysis, the scree plot leveled off at 3 factors, indicating addi-
tional factors would not add significantly to the variance explained by the model. The
3-factor model (χ² = 686.37, dF = 76) explained 73.6% of the variance, with primary fac-
tor loadings of 0.5 or above (see Table 1). In other words, there are three statistically
distinct “families” of search terms, each of which waxes and wanes in search popularity
over the 15-year period in a way that correlates highly with the popularity curves of the
other terms in its group.
Group 1 includes the terms “copyleft,” “fair use,” “free culture,” “free software,”
“GNU,” “GPL,” “open license,” “open source,” and “public domain.” Group 2 includes
the terms “Creative Commons,” “mashup,” “open access,” and “remix.” In Group 3,
there are two terms: “A2K” (access to knowledge) and “OER”.
As our “data snapshots” show, there was a wide disparity in the overall search popu-
larity of the 15 terms on our list. The overall level of popularity for terms did not corre-
late with their factor group categorization, although the terms in Group 3 were among the
least popular, especially in January 2004. The ranking of popularity among terms dif-
fered widely from the beginning of our analytical time frame to the end—a finding which
we will explore in greater detail in the “Discussion” section below. In Table 2, we organ-
ize the search terms from least popular to most popular in January 2004, and report each
term’s approximate share of the total Trends returns represented by all 15 terms, com-
bined, within each of the three given months. We again provide the caveat that the per-
centages in Table 2 are merely approximations, extrapolated from limited and imprecise
data, and are therefore valuable as directional indicators, rather than as the basis for
empirical analysis.
10 new media & society 00(0)

Table 1. Factor analysis results for 15 search terms.

Factor 1 Factor 2 Factor 3

Open license licensing 0.86208625
Open source 0.90678631
Public domain 0.89884978
Fair use 0.767069
Free culture 0.72344454
Free software 0.88057564
GNU 0.77170719
GPL 0.7699714
Copyleft 0.59209928
Mashup –0.6351925
Creative commons –0.7967361
Open access –0.4991109
Remix –0.8861046
A2K –0.6341105
OER –0.8606256

GNU: GNU not Unix; GPL: General Public License; OER: open educational resources.

Table 2. Share of aggregate trends returns in January 2004, October 2011, and April 2019.

January 2004 (%) October 2011 (%) April 2019 (%) Factor group
Mashup 0.1 2.8 3.0 Group 2
A2K 0.2 0.3 0.5 Group 3
Copyleft 0.3 0.2 0.1 Group 1
OER 0.3 0.7 1.8 Group 3
Creative commons 0.4 2.6 1.9 Group 2
Free culture 0.6 0.1 0.6 Group 1
Open license 0.7 0.3 1.8 Group 1
Fair use 1.4 1.2 2.0 Group 1
GPL 2.0 0.8 0.5 Group 1
Open access 2.9 1.0 3.0 Group 2
Public domain 3.2 3.6 3.3 Group 1
GNU 8.6 3.7 2.3 Group 1
Open source 12.8 12.5 8.5 Group 1
Remix 15.2 66.1 55.4 Group 2
Free software 51.4 4.1 15.4 Group 1

GNU: GNU not Unix; GPL: General Public License; OER: open educational resources.

Although much of our analysis in this article concerns the relative rise and fall in
popularity of terms in Groups 1, 2, and 3 over the span of time from 2004 to 2019, it is
important to distinguish those trends analytically from the absolute popularity of the
search terms. Thus, though the search frequency of a Group 3 term like “OER” may have
Sinnreich et al. 11

Figure 1. Total share of aggregate monthly Google Trends returns for Groups 1, 2, and 3.

risen sixfold relative to the other terms in our data set during that period, its overall popu-
larity remained quite low, climbing from 0.3% to 1.8% of all the searches represented in
our data set. In order to demonstrate visually, the implications of the data in Table 2 for
the relative popularity of Groups 1, 2, and 3 over time, we present these data in aggre-
gated form in Figure 1. As the figure shows, Group 1 accounted for more than four-fifth
of the searches in our data set in 2004, and was dwarfed by Group 2, accounting for
nearly three-quarters, in 2001. While Group 3 rose to its most prominent share in 2019,
it remained a fraction of the size of the other two groups, with only 2.3% of total searches.

Discussion
We found three distinct “families” of terms in our data set, within each of which the
trajectories of rising and falling popularity were highly correlated. We believe that these
groups reflect three distinct phases in the public interest in, and understanding of, the
application of copyright to digital media and culture.
In order to make these three families of terms and their corresponding phases of rising
popularity more visible and interpretable, we compiled a heuristic visualization. We gen-
erated this visualization by calculating the mean popularity score for all the terms within
each group, month by month, over the duration of our analysis. This gave us three trend
lines, which we then “smoothed” by superimposing a sixth-order polynomial, in a thicker
stroke, over the underlying data. The results are reflected in Figure 2. Thus, one can read
12 new media & society 00(0)

Figure 2. Dominant trends in digital copyright-related US Google searches, 2004–2019.

the most prominent lines for Groups 1, 2, and 3 in this figure as abstract, mathematically
descriptive representations of the aggregate popularity of the terms within each group
during the 15 years spanned by the data.
As this figure shows, each of the three groups of correlated terms presents a distinct
trajectory, and the peak in popularity for each group of terms corresponds with a different
point in time over the 15-year span of our data.
The first group of terms was at peak popularity at the outset of the time frame covered
by our data, and gradually diminished in search volume over the next decade and a half.
The second group of terms rose in popularity from 2004 through 2014, and following
this peak, dropped considerably through 2019. The third group of terms remained con-
sistently low in popularity through 2012, then climbed precipitously to reach a new peak
during the years 2015–2019. For reasons we will describe in greater detail below, we
believe that each of these groups reflects a shared set of perspectives on copyright and
digital media, and that therefore the peak popularity of each group represents a distinct
phase in the public imaginary surrounding these issues. We call these three groups
“Utopian Openness,” “Creative Openness,” and “Utilitarian Openness,” respectively.

Group 1: Utopian openness

Group 1 shows a peak in the early years of our study period. It has continued to wane in
public interest throughout the time period from 2004 to 2019 (Figure 3). These terms,
Sinnreich et al. 13

which are associated with movements to fundamentally change copyright policy and
practice, have all consistently fallen in popularity. Google searches for the most polar-
izing among them—“free culture” and its inspiration, “free software,” both explicit chal-
lenges to the legitimacy of copyright monopoly rights—have fallen by 90% or more
during the 15 years covered by our data.
The terms in Group 1 include both long-extant phrases, such as “fair use” and “public
domain,” and relatively new terms. The majority of these newer phrases were used
explicitly in promoting open-source software and include “GNU,” “GPL,” “open
source,” “open license,” and “free software.” “Free culture,” Lessig’s term, though it
applies to expressive forms such as music and photography, associates the copyright
conflicts surrounding them with the principles derived from openly licensed software.
The reason we chose the phrase “utopian openness” is because each of these terms refers
to an approach that promotes an idealized set of intellectual property relations outside of,
or counter to, established legal interpretation and practice, with a focus on rebalancing
the power relationships enshrined in and perpetuated by traditional approaches to copy-
right. The exception is “fair use,” which we discuss below.
The utopian approach to openness in copyright is evident in the public discourse, the
social movements, and the institutional support for both during the early years of the
century. Commensurately, the decline in the popularity of the search terms in Group 1
over the course of our data set corresponds with broader shifts in the cultural and institu-
tional landscape, shifts that we also experienced in our own work as copyright scholars.
The movement to promote open-source software was, in the early 2000s, still the
subject of vigorous debate, especially as two wings of the software community—one
adopting an “open source” framing and the other embracing the language of “free
software”—both sought to increase the adoption and visibility of open licenses such as
GPL (Coleman, 2012). Since then, openly licensed software has become a routine ele-
ment within a range of industries—in fact, it is a crucial element in massive markets
ranging from Internet servers to mobile phones—and this normalization has perhaps
undermined the necessity of searches for terms related to it.
Open licensing has also become commensurately less-affiliated with idealism, as evi-
denced by industry associations such as the Alliance for Open Media (which advocates
for royalty-free, open-source software as technical solutions to shared problems), and
industry developments such as IBM’s US$34 billion acquisition of open-source cloud
computing company Red Hat (Loten, 2019). If anything, the current challenges in the
open-source arena today have more to do with its dominance than with its radical legal
stance, and with the challenges of ownerless entities. For instance, maintenance prob-
lems have emerged surrounding openly available code that belongs to no one and that no
one is incentivized to maintain (Eghbal, 2016).
Private foundation funding, which often runs on 3- to 5-year cycles, has also largely
ended support for open licensing and other efforts to curb copyright maximalism. The
Center for the Public Domain shut down after 5 years in 2005, as had been planned
(Varela, 2007). The Open Video Conference, begun in 2009 to showcase efforts to
expand access to platforms for online video, closed in 2011. And World’s Fair Use Day,
an annual celebration of “fair use, creativity and remix culture” initiated by media
14 new media & society 00(0)

Figure 3. Search trend data for Group 1, utopian openness.

advocacy nonprofit Public Knowledge, was discontinued after 2012. Its website is cur-
rently derelict and has been used to distribute spam posts.2
Scholarly proposals to embrace the “commons” metaphor failed in policy discus-
sions, where even potentially amenable stakeholders were puzzled by it, one Washington,
D.C. insider recalled (Peter Jaszi, 5 June 2018, personal communication). Meanwhile, as
media and communications industries have continued to transform rapidly in the wake of
technological development, US copyright policy has been locked in a continuing stale-
mate in which no major US stakeholders have shown appetite for more than changes at
the edges of the law, such as the Music Modernization Act of 2018.
There have been few moments of widespread public concern with copyright issues in
the last decade. The great exception was the massive public outcry in the United States
over the Stop Online Piracy Act (SOPA) and its sister bill, the Protect IP Act (PIPA)
(Bridy, 2012). However, as Bridy and others (e.g. Peters, 2016: 238–244) make clear,
this important and memorable protest, which involved millions of alarmed Internet users,
was not fueled primarily by the copyright concerns that had driven the creation of the
Act. Rather, it was the side effects that would ensue from the expansion of copyright
protection through the surveillance and censorship of web-based sites and services, and
the threats posed to user access and Internet routing. The common “don’t break the
Internet” meme of the time demonstrates the concern of many millions who were alerted
to the dangers by a day-long blackout of Wikipedia and the turning dark of major web
Sinnreich et al. 15

Figure 4. Search trend data for Group 2, creative openness.

pages such as google.com. Indeed, one chronicle of the protests uses “saved the Internet”
in the title (Moon et al., 2013).
Even in the extraordinary case of SOPA and PIPA, dedicated nonprofit advocacy
organizations were unable to mobilize public opinion and sustain public interest suffi-
ciently to resist other ways of achieving the same goal. What SOPA and PIPA could not
accomplish by statute, such as making domain registrars and registrants the enforcement
arm of copyright holders, has arguably been achieved through private contracts (Bridy,
2016).
Why did public interest in activism decline? We speculate here that it may also be due
in part to the fact that consumers have been provided with commercial options that match
their appetite for digitally delivered products, including such services as Netflix, iTunes,
and Spotify. This has demonstrably lowered the proportion of people looking for illegal
opportunities to download, and lowered frustrations of consumers with copyright policy
(Masnick and Ho, 2012; Quintais and Poort, 2018; Watson et al., 2017). It has not, of
course, stopped illegal behavior, although some evidence suggests that international
piracy is largely state-driven (Karaganis, 2011), that infringement can productively mod-
erate rent-seeking (Kim et al., 2018), and that individual infringement by non-state actors
may also benefit the bottom line for creators and industries in some sectors (Lee, 2018;
Sinnreich, 2013; Tanaka, 2019). Makers have also been given new services, ranging
from Snapchat to Instagram to YouTube’s various maker programs, giving would-be
16 new media & society 00(0)

remixers off-the-shelf tools and tips on staying legal, lowering both risk and frustration
for many (Cunningham and Craig, 2018).
Many of the terms in this cluster are associated with the first wave of public concern
over copyright maximalism in online environments. But fair use is a term that has been
well-worn in legal circles and that continues today to be frequently referenced in profes-
sional practices, such as journalism and filmmaking, where its use is common. Why
should the term “fair use” follow this same pattern? Again, we cannot know from the
data, but turning to history, we may find at least an association.
In his popular lectures in the early aughts, as well as in his writing, Lessig popularized
the term “fair use” among populations that were previously unaware of it—but he did so
typically only to demonize the doctrine. In Code and Other Laws of Cyberspace, for
example, he cautioned that digital protection measures were effectively wiping out the
utility of fair use (Lessig, 1999: 137–139), which in any case he dismissed as too difficult
for ordinary people to use. In Free Culture, he repeated this point, but called the doctrine
in its pre-digital form only a “tiny sliver” of access and dismissed it as “the right to hire
a lawyer” (Lessig, 2004: 141–143, 187). By 2006, he proclaimed, from a podium at the
Comedies of Fair Use conference in New York, “I hate fair use. I hate it because it dis-
tracts us from free use” (Aufderheide and Jaszi, 2018: 66).
Thus, many people who became familiar with fair use in the early aughts may have
considered it as a hindrance to utopian goals. In that same period, by contrast, both
appeals and Supreme Court decisions embraced the utility and constitutional value of
fair use, and 12 US communities of practice, ranging from filmmakers to librarians to
nonfiction authors and journalists, created codes of best practices in fair use to make
their practice of fair use even more robust and actionable (Aufderheide and Jaszi, 2018:
Chs. 6–9). In this way, the actual practice of fair use and public embrace of it by profes-
sional groups appears to have expanded even as general interest searches for it declined.

Group 2: creative openness

In the second group, the popularity of each term rises toward the middle of the study’s
time frame, and then begins to decline around 2014, continuing a downward trend for the
remainder of the study period (Figure 4). What commonalities do the terms in Group
2—“Creative Commons,” “mashup,” “open access,” and “remix”—share? They are all
associated with creative practice in a digital, networked context. Remix and mashup are
Internet-era adaptations of long-held artistic and artisanal practices like collage, pas-
tiche, and appropriation art practices. Creative Commons licenses facilitate much of this
recombinant creative work, especially in fields like music and photography. Thus, we
interpret this group as united by the theme of openness for the purposes of creativity.
Each term’s peak popularity, irrespective of their popularity levels overall, occurred in
the years following Google’s purchase of YouTube (2005) and Facebook’s availability to
the general public (2006). Thus, we might interpret the rise of most of these search terms
as associated with new “Web 2.0” and social media platforms that stimulated interest in
sharing “DIY” (do-it-yourself) digital cultural forms such as remixes and mashups dur-
ing the mid to late 2000s and early 2010s.
Sinnreich et al. 17

Digital streaming and off-the-shelf and built-in digital production tools made viewing
and creating online creative work easier, as the search terms in Group 2 declined in popu-
larity. For instance, the media industry began to shift from digital rights management
(DRM)-protected to encryption-free distribution with Apple’s iTunes Store revamp in
2007 (Sinnreich, 2007). Similarly, the American streaming media industry achieved
mainstream prominence with the launch of Netflix’s US streaming services in 2010, and
with the US launch of Spotify in 2011. In social media, Snapchat launched in 2011, and
by 2015, it had introduced its popular “lens” feature, using facial recognition to provide
real-time photo and video augmentations (such as its heralded “face swap” function).
Musical.ly, a popular social media app, allowing people to create and share lip-syncing
videos with special effects, launched in 2014 (the app was acquired by, and merged into,
the popular video sharing app TikTok in 2017). Once recombinant production tools like
these had been incorporated into the core functions of the dominant social media plat-
forms, fewer users would have to search Google independently for terms like “remix”
and “mashup,” or create, share, and view them outside these commercial contexts.
What about “open access,” a term that may at first glance seem to share more of its
cultural DNA with terms like “access to knowledge” (Group 3) and “open licensing”
(Group 1)? Considering the context of digital media production established by the other
terms in Group 2, we believe that open access may have been more urgently relevant to
searchers on Google hoping to integrate digital media elements into their recombinant
work without fear of consequences for infringement at a time before off-the-shelf crea-
tive tools and media asset libraries were more generally available. Contemporary litera-
ture lends support to this premise; for instance, Suber (2012) argues that “OA [open
access] makes work more useful . . . by making it available to more people who can put
it to use, and by freeing those people to use and reuse it” (p. 6). Similarly, Adema and
Hall (2013) argue that open access has a “radical” capacity, by making creative material
“available for others to (re)use, copy, reproduce, distribute, transmit, translate, modify,
remix and build upon” (p. 153).

Group 3: utilitarian openness

The final group is composed of just two search terms: “A2K” and “OER.” Both have
steadily grown in popularity over the study period (Figure 5), while also becoming insti-
tutionally more prominent on a global scale (a fact not reflected in our data, which
describe search trends only within the United States). A2K (access to knowledge) and
OER are both terms used by associations and institutions. A2K is principally associated
with advocacy related to patent issues, particularly access to lifesaving drugs (Krikorian
and Kapczynski, 2010). Internationally, libraries have also used A2K as an affirmative
principle in treaty negotiations and in national debates over copyright policy.
We interpret the rise of interest in these terms as a pragmatically rooted search for
politically valuable knowledge or connections, as well as interest by students and educa-
tors for free or low-cost educational resources. OER has grown greatly in the last decade
as a movement to lower the cost of access to knowledge through creation of publicly
accessible learning materials. Its origins are in the same idealistic moment in which the
“free culture” movement was born. In 2001, Creative Commons licenses and MIT’s
18 new media & society 00(0)

Figure 5. Search trend data for Group 3, utilitarian openness.

OpenCourseWare initiative were launched and an Open Society Institute meeting was
held in the same year (Yuan et al., 2008), which built on interest in open software efforts.
The soaring costs of textbooks—at triple the rate of inflation—has encouraged educators
previously unconcerned with copyright issues to look into OER. By 2013, 10% of K-12
educators were using OER materials, according to the Hewlett Foundation (William and
Flora Hewlett Foundation, 2015), and the US Department of Labor was funding OER
materials for community colleges.
The growth in popularity of these terms may be due in large part to institutional sup-
port. The SPARC, an international effort led by libraries, was founded in 1998 and now
has hundreds of institutional members. The Public Library of Science (PLOS), a set of
open-access scientific journals, is a self-described OER. A movement to create open-
access textbooks also falls under the OER rubric. Creative Commons material, crucial
for OER, has also increased steadily in this time period, with the total number of licensed
works tallied by the organization itself climbing from 400 million in 2010 to almost 1.5
billion in 2017 (Figure 6).
The William and Flora Hewlett Foundation has been funding OER strategically since
2002, when it launched a field-building approach that invested in people and institutions
to develop OER materials and strategies. In 2015, it shifted to a targeted and advocacy
approach, focusing on K-12 and higher educational materials for common-core and most
commonly offered courses, as well as infrastructure, to trigger adoption generally
Sinnreich et al. 19

Figure 6. Total number of creative commons licensed works, 2006–2017.

(William and Flora Hewlett Foundation, 2015). Other private foundation funders have
included the Alfred P. Sloan Foundation and the Andrew W. Mellon Foundation.
The National Science Foundation has required research results to be published in
open-access formats 12 months following publication, after a 2013 report called for such
a policy (Lucibella, 2015). This policy change has facilitated the rise of OER. SPARC
found in 2017 that universities were giving grants to faculty to publish in open-access
formats (since commercial publishers sometimes offer this option rather than a paywall
option, for a price), including OER, in greater numbers starting in 2013 (Yano, 2017).

Conclusion
We interpret the different trends among the three groups of search terms collectively as
a narrative of changing public curiosity surrounding copyright and digital media, as well
as resistance to the consequences of copyright maximalism, over the past two decades.
In the first phase, utopian notions championed by charismatic figures such as Stallman
and Lessig, as well as deep frustration with the terms of copyright in the newly digital
era, inspired interest in concepts like “free software” and “free culture.” This utopian
concern declines; there are fewer searches over time, although searches continue. A sec-
ond pattern emerges as expressive tools and practices become more available; people
begin to explore the meaning and mechanisms of remix and mashups, leveraging open-
access media to do their work. This curiosity declines as commercial alternatives grow.
20 new media & society 00(0)

The third phase hints at a more general trend. In this pattern, two terms that are rou-
tinely put to work in institutional and professional settings, and by creators interested in
sharing their own materials freely, begin to attract significantly more attention than they
had in the past, even though their overall share of searches remains low. These terms
suggest a pragmatic approach to copyright policy as it exists, not a utopian one that
attempts to design a future outside of it.
Overall, we interpret these trends to reflect a shift in emphasis within the public imag-
inary regarding the meaning of copyright in the daily lives of everyday people.
The high-conflict moment in which consumers and activists were pitched against
copyright hawks and their legal teams has passed (for the time being). So has the DIY
moment in which creatives of all kinds experimented at the frontier of digital expression.
We now have a public imaginary in which all the search terms we analyzed are searched
within a highly utiliarian context. Thus, Creative Commons is no longer a utopian con-
cept, but a tool, and one with fine gradations, for different levels of sharing—something
that a creator might routinely consider. Open-source software is no longer a utopian call
to reorganize production but variously an option on GitHub, a logistical headache, and a
reality on everyone’s cell phone. Open access is an option for teachers looking to escape
high textbook prices, one of the choices provided to authors by many publishing houses,
and a requirement for published research done with US government funding. Fair use is
no longer demonized by utopians. It is in the drop-down menu for YouTube takedowns,
in the credit rolls of films, and part of newsroom lore; librarians annually celebrate Fair
Use Day with public activities. The public domain is celebrated annually in news arti-
cles, as every year a new tranche of public domain material becomes freely accessible to
the public at large.
Over the first two decades of the 21st century, a legal, cultural, and institutional ecol-
ogy has emerged in which governmental, nonprofit, and corporate forces have developed
some breathing spaces in copyright practice. Patterns of public curiosity have changed
commensurately.
The patterns revealed in our data suggest how, from a law and society perspective,
public opinion, social movements, commercial innovation, and the law interact. A
combination of commercial and regulatory changes, both create digital opportunities
and constrain the abilities of creators and consumers to exploit them, boosting and
shaping public awareness of copyright issues. Utopian and cause-driven activists—
makers, scholars, public intellectuals, software designers, and funders—create con-
cepts and tools to drive changes in practice and, when possible, policy. Creators, given
new venues and tools, show curiosity about ways to access copyrighted material to
make digital, configurable culture. Enduring initiatives within libraries and higher
education expand access to copyrighted material, and commercial innovations that
embed creative tools in devices and software combine with them to shift patterns of
public curiosity.

Limitations
The conclusions in this study are based on search terms queried in Google Trends and
are thus limited both by the populations with access to Google throughout the study
Sinnreich et al. 21

period and by the data retrieval protocols and boundaries of this tool. It would be help-
ful to look at trends starting before 2004 (which is not possible in Google Trends), given
that much of the “information commons” work was launched years before that. In addi-
tion, though we know that these terms were used in searches, we cannot know toward
what end or in what context, as is evident in our discussion of possible reasons for fair
use inquiries. Finally, we can only infer, but not prove, a causative relationship between
historical events and changes in trends. Others may want to explore the historical, eco-
nomic, and social context within which people conduct such searches, and find different
explanations. As well, historical and ethnographic research may add to the empirical
record.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this
article.

ORCID iDs
Aram Sinnreich https://orcid.org/0000-0003-0499-9109
Patricia Aufderheide https://orcid.org/0000-0003-3725-6715

Notes
1. We used a “wildcard operator” to capture several grammatical variants of this term, including
“open license” and “open licensing.”
2. The abandoned website is still available at the time of writing at http://worldsfairuseday.org/.

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Author biographies
Aram Sinnreich is professor and chair of Communication Studies at American University’s School
of Communication in Washington, DC.
Patricia Aufderheide is University professor at American University’s School of Communication,
and founder of the Center for Media & Social Impact there.
Maggie Clifford is a doctoral student at American University’s School of Communication in
Washington, DC.
Saif Shahin is an assistant professor at American University’s School of Communication in
Washington, DC.