“We are doing anything we can to alert the government to the very serious situation in the entertainment industry,” ACAPOR commented at the time, adding that “1000 complaints a month should be enough to embarrass the judiciary system.”

The Department of Investigation and Penal Action (DIAP) looked into the complaints and the prosecutor came back with his order this week. Contrary to what the anti-piracy group had hoped for, the 2,000 IP-addresses will not be taken to court. Worse for ACAPOR, the prosecutor goes even further by ruling that file-sharing for personal use is not against the law.

“From a legal point of view, while taking into account that users are both uploaders and downloaders in these file-sharing networks, we see this conduct as lawful, even when it’s considered that the users continue to share once the download is finished.”

“Personally I think the prosecutors just found a way to adapt the law to their interest – and their interest is not having to send 2,000 letters, hear 2,000 people and investigate 2,000 computers,” Pereira says.

About a year and a half ago I released my film Sita Sings the Blues under a Creative Commons Attribution-ShareAlike license. That license allows truly free distribution, including commercial use, as long as the free license remains in place. But my experience is that most people see the words "Creative Commons" and simply assume the license is Non-Commercial -- because the majority of Creative Commons licenses they've seen elsewhere have been Non-Commercial.

This is a real problem. Some artists have re-released Sita remixes under Creative Commons Non-Commercial licenses. Many bloggers and journalists assume the non-commercial restrictions, even when the license is correctly named:

The film was made available under a Creative Commons Attribution-Share Alike License, allowing third parties to share the creative content for non-commercial purposes freely as long as the author of the content is attributed as the creator of the work. --Frontline, India's National Magazine

Initially I tried to explain what "ShareAlike" means, and asked "Sita" remixers to please switch to ShareAlike, per the terms of the ShareAlike license under which I released it. I felt like an ass; I don't want to be a licensing cop. After a while, mis-identifications of the project's license became so widespread I gave up trying to correct them. "Creative Commons" means "Non-Commercial" to most people. Fighting it is a sisyphean task.

So I'm stuck with a branding problem. As long as I use any Creative Commons license, most people will think it prohibits commercial use. Hardly anyone seems to register, let alone understand, CC-SA. Worse, those who do notice the ShareAlike marker combine it with Non-Commercial restrictions on their re-releases, which compounds the confusion (CC-NC-SA is the worst license I can imagine).

ShareAlike is an imperfect solution to copyright restrictions, as it imposes one restriction of its own: a restriction against imposing any further restrictions. It's an attempt to use copyright against itself. As long as we live in a world wherein everything is copyrighted by default, I will use ShareAlike or some other Copyleft equivalent to attempt to maintain a "copyright-free zone" around my works. In a better world, there would be no automatic copyright and thus no need for me to use any license at all. Should that Utopia come about, I will remove all licenses from all my work. Meanwhile I attempt to limit other peoples' freedom to limit other peoples' freedom.

It would be nice if the Creative Commons organization did something to address this branding confusion. We suggested re-branding ShareAlike licenses as CC-PRO, but given that Creative Commons' largest constituency is users of Non-Commercial licenses, it seems unlikely (but not impossible!) that they would distinguish their true Copyleft license with a "pro" brand.

If only Creative Commons offered this!

It would also be nice if everyone, including and especially representatives of Creative Commons, referred to their licenses by their names, instead of just "Creative Commons." "Thank you for using a Creative Commons license," they tell me. You're welcome; I would thank you for calling it a ShareAlike license. Almost every journalist refers to all 7 licenses as simply "Creative Commons licenses." And so in the popular imagination, my ShareAlike license is no different from a Non-Commercial, No-Derivatives license.

This branding crisis came to a head recently when the Canadian Broadcasting Corporation banned all Creative Commons licensed music in its shows:

The issue with our use of Creative Commons music is that a lot of our content is readily available on a multitude of platforms, some of which are deemed to be 'commercial' in nature (e.g. streaming with pre-roll ads, or pay for download on iTunes) and currently the vast majority of the music available under a Creative Commons license prohibits commercial use.

In order to ensure that we continue to be in line with current Canadian copyright laws, and given the lack of a wide range of music that has a Creative Commons license allowing for commercial use, we made a decision to use music from our production library in our podcasts as this music has the proper usage rights attached. link

Perhaps Creative Commons should only offer the Non-Commercial/No Derivatives licenses everyone associates with the name. Then they could create a new name/brand for their Free licenses. FreeCommons? CultureSource? CopyLove?

Meanwhile, I'm wondering how to clearly communicate my work is COPYLEFT. In addition to the CC-SA license, if there's room I write "COPYLEFT, ALL WRONGS REVERSED". Unfortunately, the term "Copyleft" is growing increasingly meaningless as well. For example, Brett Gaylor's mostly excellent film RIP: A Remix Manifesto gets a lot of things right, but it misunderstands and misuses the term "copyleft". Copyleft actually means this:

the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work. In other words, copyleft is a general method for making a program (or other work) free, and requiring all modified and extended versions of the program to be free as well. -Wikipedia

But in RIP it means this:

I need a license that people understand. I'm tempted by the WTFPL but I would have to fork it to add a copyleft provision. The Do Whatever You Want And Don't Restrict Others From Doing Whatever They Want Public License? WTFDROPL?

Are there any other useable Copyleft licenses out there that aren't associated with non-commercial restrictions? I'm open to suggestions.

"Once this bill is passed, you could go online and steal every movie that's ever made, every book, and every song, put them on your hard drive, admit liability, and write a $5,000 check. That would be the full extent of it -- and it would be the first rights holder who would get all the money. Nobody else would get a cent. It's close to saying that for people who want to steal stuff, there's a compulsory license of $5,000."

In my endless attempt to explain what's wrong with Creative Commons' "non-commercial" and "no derivatives" restrictions, I came across this 2005 article by Benjamin Mako Hill:

Free Software's fundamental document is Richard Stallman's Free Software Definitions (FSD) [3]. At its core, the FSD lists four freedoms:

• The freedom to run the program, for any purpose;
• The freedom to study how the program works, and adapt it to your needs;
• The freedom to redistribute copies so you can help your neighbor;
• The freedom to improve the program, and release your improvements to the public, so that the whole community benefits;

...For the CC founders and many of CC's advocates, FOSS's success is a source of inspiration. However, despite CC's stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software's success is built upon an ethical position. CC sets no such standard.

This has led to a proliferation of harmful and incompatible CC-NC and CC-ND licensed works, mistakenly labeled "Free." Mako Hill points out that while Creative Commons pursued its goal of "Balance, compromise, and moderation," it failed to define or defend any core freedoms. Indeed, there seems to be no concern about what the "Free" in Free Culture means. To most it means, "slightly less restrictive than modern copyright." Even so, most CC licenses are more restrictive than pre-1970's copyright (because modern copyright's extended terms and more draconian punishments for infringements still apply).

Fortunately the Four Freedoms of Free Software easily apply to Culture:

the freedom to use the work and enjoy the benefits of using it

the freedom to study the work and to apply knowledge acquired from it

the freedom to make and redistribute copies, in whole or in part, of the information or expression

the freedom to make changes and improvements, and to distribute derivative works

Ironically I was arguing with Richard Stallman last month about the Free Software Foundation's use of -ND licenses on its cultural works. A film they sponsored, Patent Absurdity, has "no derivatives" restrictions even though it could be greatly improved by editing, and clips could be highly beneficial in other works. Freedom #4 FAIL. Even the FSF fails to apply the Four Freedoms to Culture!

Software IS culture. Many in the Free Software Movement draw a false distinction between "utility" and "aesthetics," claiming software is useful and culture is just pretty or entertaining. But you never know how a cultural work might prove useful to someone else down the line. If you treat it as non-useful, and restrict it to prevent other uses, then of course it won't be useful - you've restricted its utility through an unFree license.

The Free Software community needs to learn that Software is Culture. The Free Culture community needs to learn that Free is Free.

FREE. CULTURE. It's not that hard.