Even 'Free' Culture Supporters Sometimes Have Difficulty Living Up To Their Own Principles
from the Software-IS-Culture dept
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
That’s not so hard, is it?
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.
Filed Under: creative commons, free culture, non-commercial
Comments on “Even 'Free' Culture Supporters Sometimes Have Difficulty Living Up To Their Own Principles”
Aw, crap....
I released a book under a CC-ND/NC license before I really understood this stuff (actually, I’m not sure I fully do even now). Now you’ve made me feel like a greedy sum’bitch….
This article isn’t very well written?
Re: Re:
I don’t know, is it?
Re: Re:
Seemed pretty straightforward to me.
Re: Re:
This article is by Nina Paley. She’s a cartoonist by trade (and an awesome one!) and her writing is very different from Mike’s – it’s the change in style you’re noticing.
Re: Re:
Who are you asking?
Re: Re:
… so rewrite it and make it better. Er. Is that allowed or not ?!?
free culture
I agree completely with concerns over the no-derivatives clause on the creative commons. I have never released anything with the ‘nd’ because I feel that it makes my content useless to anyone who might want to use it.
The non-commercial clause, however, doesn’t bother me at all. (disclaimer: I use cc-by-nc-sa for nearly everything I release.)
Even Richard Stallman has pointed out the distinction between creative cultural works like art/music, and objects/tools like coffee tables and software.
To be perfectly honest, it would piss me off if someone else made more money off my work than I did.
I might not be in a position to monetize my content right now, but I might have plans for the future. I can keep all my content to myself, locked away for years until I want to sell it, but I believe that harms culture far more than a ‘non-commercial’ license that is attached to media that gets released right now.
Copyright does go on for far too long (25 years from date of first publication is what I believe to be ideal)
Creative commons isn’t really a solution, but it is a system of harm-reduction that I think makes copyright less worse.
Re: free culture
Nicely put.
Stronger examples of “harmful and incompatible CC-NC and CC-ND licensed works” might make Nina’s point more compelling.
Re: Re: free culture
Thank you.
To me, the one part of cc that really bothers me is the incompatibilities that creep up with the ‘sa’ clause.
“cc-by-nc-sa”, “cc-by-nd-sa” and “cc-by-sa” don’t play nice together.
You can’t force artists with semi-free work to relax their rights further than they originally wanted just because someone else remixed it with stuff that is more free.
Part of me thinks that a good way to go would be to err on the side of restriction.
eg. If someone combines “cc-by-sa” stuff with “cc-by-nc-sa” stuff, rather than being ‘not allowed’ it should be cc-by-nc-sa.
But what happens if those greater freedoms are part of the point of the cc-by-sa material?
And it’s too easy to defeat that idea with a slippery slope argument…”you can err on the side of greater restriction all the way back to full blown copyright!”
It reminds me of the BSD vs. GPL debate, where the former is objectively “more free”, while the latter is more of a political statement, it is concerned with keeping things free.
This is why I use the “sa” clause rather than just releasing things “cc-by-nc” I know that I am making my work less free by doing so, but I do this because I hope that it will inspire others to build upon it in a way that might someday lead to a cultural commons everyone can draw from.
Re: Re: Re: free culture
This kind of crap is why I just use CC-BY.
I want some credit, if you manage to make something cool. If you make something profitable, more power to you. I may follow that business model.
Re: Re: Re: free culture
You guys really should not assume everyone has these license abbreviations memorized. Even around here “cc-by-nd-sa” probably means nothing to most people.
http://creativecommons.org/about/licenses/
by: attribution required
sa: share-alike; redistribution of derivative works under the same license is allowed
nc: non-commercial use only
nd: no derivative works
Re: free culture
“To be perfectly honest, it would piss me off if someone else made more money off my work than I did. “
Why should it matter whether they made more or less money than you out of your work? It’s hard enough to understand why someone else making money from your work is a problem without the amount being a factor.
“I might not be in a position to monetize my content right now, but I might have plans for the future. I can keep all my content to myself, locked away for years until I want to sell it, but I believe that harms culture far more than a ‘non-commercial’ license that is attached to media that gets released right now.”
Why release it as CC at all if you don’t want it to be spread as widely as possible? I don’t see how someone making money off the distribution might harm your future sales. If anything it should help grow your audience for future projects where you can invest more in reaching them directly.
Re: free culture
Even Richard Stallman is wrong sometimes.
Re: Re: free culture
If he weren’t wrong sometimes, there would be no need for GPLv3, we would still be on GPLv1.
The GFDL also tends to be a headache with its “invariant sections”.
However, we have to be careful when criticizing him; he often is shown to be right years or even decades after saying something.
Re: Re: free culture
I have volunteered with the FSF many times, and you are not wrong.
Re: Re: free culture
I think one reason for this distinction may not necessarily be that rms and others believe cultural works *shouldn’t* be free or shouldn’t be encouraged to be free, but think about this distinction. Software generally comes in two forms, source code and compiled binary. Whereas (cases like Blender Foundation films and Sita’s sources aside) cultural works can live and grow to their fullest extend even without the raw materials used to make it. The cultural binary has nothing preventing its further development, which is very much not the case with software. One of Stallman’s defining goals was to create an ecosystem of software that could be modified readily, which may be why he draws a distinction between the utilitarian objects like code and aesthetic objects like art. Stallman hasn’t campaigned against games with non-free art for the same reason. He views the ability to modify the mechanics of a system as more fundamental than what graphics one uses with the core. I’m not sure I disagree with this, though it’s admittedly more of a picking one’s fight thing than anything else.
Re: Re: Re: free culture
Stallman simply respects software more than the rest of culture. He has various reasons for that. I don’t agree with those reasons, nor do I share his preferential respect. But I understand where it comes from, and I respect the hell out of the guy.
Re: Re: Re: free culture
>> cultural works can live and grow to their fullest extend even without the raw materials used to make it.
I disagree (with the superlative), though source for software might more frequently than not be more crucial than source for art (there are more layers of obfuscation to turn software source into the finished product). It’s much more useful to have source for works of art than not to have them. It’s more empowering: easier to customize, extend, remix, …, and learn.
As Nina implied in an earlier reply, when your material and love is with art, having source for those types of works is very valuable, more valuable than for works you may not touch much.
Re: Re: Re:2 free culture
Also wanted to mention that part of the “source” to some works might be considered to be in the form of describing the technique used to achieve a certain effect (eg, the layers of painting that blend into the final product). The particular technique might not translate immediately to digital source bits but might lead to a video showing the use of the technique within the work.
I think CC should have SRC, meaning that use of some works that come with source would require that the source material or techniques to “proprietary” stuff mixed in would be required to be revealed (the aim would be to allow recreation of the mixed work). This SRC condition would further promote growth and opportunities. In the end, we all have different skill levels no matter how many books are written on a given subject. People still make a living acting or building a house.
I already mentioned a bit the idea behind SRC in an email to creative commons org, but have not followed through with further discussion in their forums (or mailing lists?) as was suggested I do. Do others think SRC might be useful? If enough people can make the case, it might get added.
Re: Re: Re:3 free culture
I think any artist that shares their “SRC” will receive a boon in fans and status, but I don’t know if regulating that with a license would be of any benefit. There are other incentives for artists to share techniques. Speaking of which, check out this great making-of page from animators Tiny Inventions. They are very smart about sharing!
Re: Re: Re:4 free culture
“I think any artist that shares their “SRC” will receive a boon in fans and status”
This is true. videos where I show myself painting and offer up a few simple tips are more successful in both number of views, and more importantly, number of comments, than the videos where I just show off the final pieces.
The videos with how-to info are a conversation, while the presentations of my final work are more ego-building “oh, look at me!” things.
Re: Re: Re:5 free culture
You’re absolutely right, when self-publishing is so cheap (and you’re no longer biased by copyright to impede others’ ability to reproduce your work), publishing source and intermediate working can add to your portfolio and increase the depth of your audience.
Unfortunately, there are some misguided souls who believe that it is not copyright indoctrination, but artists themselves who are anal retentive and reluctant to release source. They feel that artists should be legally compelled to provide their source to any published work, that this can be sequestered if it is not provided on request.
So we have to be careful to avoid using the ‘freedom to’ in the sense of ‘power to’. Some may like the artist to publish their source, but they have no right to it. Claiming one should have the freedom to it does not warrant being given the power to seize it. The usual and ethical means of obtaining something from someone is to offer them something of equal value in exchange, e.g. money.
Re: free culture
But the question is: WHY would a person make more money off your works than you? You are the original creator – if you have a fan base, your fans will support you and buy from you. So really, the only way someone else can outperform you is if they market the hell out of it; which, if they maintain attribution as they’re supposed to, only promotes you better. And if they’re spending tons of money to promote and market something, greater than the amount that you’re spending, why shouldn’t they reap a benefit greater than you? Ultimately all ships get lifted, especially when you create your next work because now more people know your name.
Re: free culture
But the question is: WHY would a person make more money off your works than you? You are the original creator – if you have a fan base, your fans will support you and buy from you. So really, the only way someone else can outperform you is if they market the hell out of it; which, if they maintain attribution as they’re supposed to, only promotes you better. And if they’re spending tons of money to promote and market something, greater than the amount that you’re spending, why shouldn’t they reap a benefit greater than you? Ultimately all ships get lifted, especially when you create your next work because now more people know your name.
RMS and copyright restrictions
Stallman has said in many of his speeches that some works may need some mild restrictions (such as CC-ND) depending on the type of work it is. Factual works (e.g. scientific research) might need some restrictions to keep them from being used out-of-context or modified in a way that destroys the factual integrity of the information in the works.
Here’s a video of him discussing this and other copyright issue: http://www.youtube.com/watch?v=SNBMdDaYhZA
Other video formats can be found here: http://www.archive.org/details/20090203-Richard-Stallman-UofC-01
The discussion about restrictions on certain kinds of works are in the second half of the video.
Re: RMS and copyright restrictions
Aaron said:
But you cannot copyright facts.
Re: Re: RMS and copyright restrictions
I didn’t say facts could be copyrighted. I was referring to works that invlove the use of facts (e.g. scientific papers, historical documents and similar works.)
If you bothered to watch the Stallman interview I linked to you’d know what I’m talking about. The part of interest starts around 47:35 in the video.
Re: Re: Re: RMS and copyright restrictions
Aaron wrote:
Or hot news?
What else is there to a factual report, if not the facts?
Re: Re: Re:2 RMS and copyright restrictions
>> What else is there to a factual report, if not the facts?
The presentation of the facts.
… In any case, I think a lie is a lie regardless of whether you leverage some other work to twist it or not.
I hope most people prefer facts, in which case, enabling more people will simply lead to more discussion and greater dissemination of facts. If you are featured in the lie and a few people care, you should be able to make noise and in the end you gain, your message gains, and those lying will certainly lose something (if perhaps they gain short-term).
Re: Re: Re:3 RMS and copyright restrictions
The freer a work is, the harder it is to lie about it.
Re: RMS and copyright restrictions
Ethically, this seems to fit the same/similar consideration as lying/truth-telling. And that is indeed mandated to various degrees. But it isn’t properly a matter of copyright etc., because it is not really for the author/creator to decide and control. It is something decided more objectively or widely.
Stallman also groups ‘artistic integrity’ with factual, and that seems even less reasonable for the author to decide. And he does indeed give a very good argument, about Shakespeare’s re-workings, to persuasively show that. But ultimately he says freedom there is not ‘urgent’. That really seems a very weak conclusion.
Re: Re: RMS and copyright restrictions
Very astute observation.
The privilege of excluding others from making copies is nothing to do with the right to truth (against its malicious impairment). Certainly, copyright enables grossly disproportionate legal threats to be made against those making untruthful copies or claims concerning them, but that doesn’t put the protection of truth within copyright’s ambit.
RMS has simply failed to recognise truth (already well recognised in some jurisdictions as moral rights or droits moraux) and has instead created a spurious and ill defined trichotomy of intellectual works.
Thus even after copyright’s abolition, people still need redress against cases of plagiarism/misattribution, misrepresentation, compromises of artistic integrity, etc.
Even Lawrence Lessig gets it wrong in framing attribution as an obligation to be compelled by the copyright holder (via CC license), instead of implicit/explicit misattribution as an impairment of truth external to copyright.
Re: Re: Re: RMS and copyright restrictions
Crosbie
respectfully,your comment about Lessig seems to have mixed up two kinds of moral rights. The right to attribution/anonymity/pseudonymity is not the same as the right of integrity.
Re: Re: Re:2 RMS and copyright restrictions
David, Attribution is not a right, but a condition of CC licenses. Of course, if one prefers to term copyright a ‘right’ (legally granted) instead of the privilege that it is then one may well confuse attribution as a ‘right reserved’ in the context of ‘not all rights reserved’.
The right to truth is natural – not legally granted – and so needs no reservation. It is not granted, but recognised and protected.
Anonymity/pseudonymity is a matter of the right to privacy, not truth. If someone physically conceals their identity then they have a right to exclude others from it, from violating of their veil of privacy to discover it. Disclosure of identity is also not a prerequisite to enjoy one’s right to liberty.
As to integrity this is a matter of truth – whether the work presented as that of the author’s is truly the author’s work, or a true likeness, e.g. not corrupted, bowdlerised, significantly degraded or changed in meaning, etc.
Re: Re: Re:3 RMS and copyright restrictions
Crosbie
Attribution is in law a right, under the Berne convention, to which the U.S. is a party. The U.S. Senate implemented the moral rights provision by declaring that moral rights are already provided by U.S. common law.
(Paris Text 1971)
Article 6bis
“(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
I agree that it is a misrepresentation to change another’s work without permission. Additionally, doing so without permission, even with clear qualifications, can be offensive to the artist and to others, and harmful to the artist’s reputation.
I assume all rights are reserved whether there is a notice to that effect or not. It would take an express waiver to abrogate them. In any event I would never assume that such a reservation is limited to copyright.
In Canada at least, moral rights are not aspects of copyright although they are found in the Copyright Act. As it says in the Berne convention quoted above “independently … of economic rights…”
Anonymity and pseudonimity can have more purposes than privacy alone. Often one sees on the cover of books that the book is by “X” writing as “Y”. Authors may use these rights, for example, to hit different markets, to have credibility when writing about new subjects, to come up with a more marketable name, etc.
As to whether copyright is a right or a privilege, it has been treated as the former until recently in Canada. However now the Supreme Court has decided it is a bargain, that in exchange for publication the author gets copyright.
I am dying to defend a Canadian infringement case where copy protection or restrictive license terms curtail the exceptions to copyright, to see if I can get the Court to render the copyright unenforceable. This would make copyright a contract, which authors have the privilege to accept, and make the exceptions to copyright into user rights, which it would be a breach of the contract to limit.
Best regards
Re: Re: Re:4 RMS and copyright restrictions
David,
The moral right for the author to identify themselves as the author of their work is rather different from the copyright enforced obligation for licensees to attribute authorship in their otherwise infringing use of CC-NC works.
As I said, Lawrence Lessig got it wrong in framing attribution as an obligation to be compelled by the copyright holder (via CC license), instead of implicit/explicit misattribution as an impairment of truth external to copyright.
As we both acknowledge, many jurisdictions recognise this in terms of moral rights (independently of legally granted economic rights aka commercial privileges).
Legally granted rights can be transferred, assigned, and waived. Natural rights cannot – they are inalienable, though they need not be exercised.
However copyright is treated (privilege, right, social contract, etc.), the fact remains that it is a privilege – a legislatively granted right (one should disregard obscure jurisdictions that pretend it to be a natural right – as even some in England once claimed it to be).
I doubt you’ll have much success achieving copyright’s alienation of an individual’s right to copy via contract. Such liberty, being inalienable, can only be derogated through legislation – not contract. You’ll find copyright jealously reserves such power to itself.
I agree with you to a point about the ND licenses, but I think NC is vaild and I choose to use it for my own releases.
To me, for the whole debate I think it is important to differentiate between two markets for content: the personal and the commercial. I am happy to release my works for independent artists to remix and for people to share amongst themselves – my plan is that my for sale offerings are compelling enough to elicit sales. Releasing it for commercial use is another story, however. I see no reason why I should give away freely what otherwise I can legitimately charge for?
The problem with personal copyright suits etc. these days is infringements are so hard to prove and enforce that the enforcement is redundant, commercial is completely different and if someone wants to use my song on an ad that will earn them money, then they should not be able to do so freely. If someone wants to use my song in a youtube video i’d like attribution, but i’m happy to release it for that because it encourages personal creativity. I see no reason why I should forgo income to encourage corporate creativity when they’re used to paying?
Re: Re:
“Releasing it for commercial use is another story, however. I see no reason why I should give away freely what otherwise I can legitimately charge for? “
Then why do you let people share your work freely at all? I don’t understand your reasoning here.
“these days is infringements are so hard to prove and enforce that the enforcement is redundant”
This makes more sense, if the only reason you’re in favour of sharing is because you can’t stop it then I can see why you may not want to go any further. I don’t agree that you should make people pay just because you can though, especially considering you can’t guarantee that they will use your work if they have to pay. It seems better to me for them to make some money and provide you with more exposure than to hope that you’ll get any meaningful amount through commercial licences.
Re: Re: Re:
Some people may be using creative commons as a signal that they do not wish to bully their fans. Some people wish to protect their fans without extending the same offer to major corporations.
Re: Re:
For me that’s the crucial point as well – for personal use, yeah knock yourself out. For commercial use – the creator should get a commission.
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The SA clause usually means that you can take back (that they give as well), and overall you will generally have more opportunities to take much more than you put in (across all SA works). This clause is enough to get more people to take risks with their work without fear of being overly abused by very large entities.
Of course, in most cases, the “by” clause and the simple fact of your authorship will give you more exposure and make it in the interest of commercial players to share some money with you (especially as they compete with each other and if they leverage your work significantly), money that you may not have ever found the opportunity to funnel your way.
Do we really want to pressure works of culture to be generally usable only if no one is making money? A greater market overall will exist if everyone knows they can generally leverage the works of others within their business or to create new opportunities. Remember that you too get to use what another makes, not what one other person makes, but what millions of others make. Have faith that in fact there are a great many talented people out there and it’s not just you carrying the world on your shoulders with little to take back for free. Also, consumers will always seek out the authentic whenever possible, in particular, if they have money to spend and price authentic much higher than imitation (and it won’t just be buying material products; also donations and support for future projects, as well as customizations and private lessons).
Finally, the power of SA means that you will have corporations come to you asking for a license without the SA so that they don’t have to open up their work (eg, a movie). This angle might appeal to you if you are interested in the $$ aspect to a significant extent as it is yet another $$ opportunity that only exists because of SA and which generally favors the smaller entities as the large might feel they have more to lose by opening up.
Re: Re: Re: Re:
Finally, the power of SA means that you will have corporations come to you asking for a license without the SA so that they don’t have to open up their work (eg, a movie).
Indeed, this happened with “Sita Sings the Blues.” I turned down a very attractive publi$hing offer because I didn’t want to undermine the Free Distribution Project. But no one else has to under similar circumstances.
Re: Re: Re:2 Re:
Not everyone would offer distinct licenses to satisfy those companies, but the *possibility* should encourage more people sitting on the fence to go SA (to the benefit of the majority).
MySQL, not loved by everyone in the FOSS world, but certainly appreciated by many, made a living exactly off those commercial licenses to bypass copyleft. They eventually sold the company for about $1 billion.
It’s a personal decision to accept any particular offer, but the initial decision to go SA should be considered a no-brainer by many once they understand the levers it gives to creators (and, since we are all third parties in most transactions, the levers it gives to the population as a whole).
PS: To those that haven’t seen it, “Sita Sings the Blues” can be seen here http://www.sitasingstheblues.com/
...missing the point a bit.
I am not sure that the Creative Commons is so much about swallowing the whole elephant in terms of FSF dogma but allowing a wider range of options for people that want to license their work. A wide range of possibilities should be open and all of those should be simple and easy to understand. Each author should be free to set different expectations. Nothing should be mired in an incomprehensible EULA.
Re: ...missing the point a bit.
Indeed, that’s why it’s called Creative Commons and not the Free Culture Foundation.
Valid point there, the FSF f. up.
I love the FSF and Stallman but we do disagree in some points.
On this one I will side with the bastard called Linus Torvalds that stated that freedom means the right to do whatever you want with something so if some evil master wants to use what was produced to dominate the world that is fine too, which reminds me of the old saying “take the good with the bad”, there is definitely some low points about freedom but hey nothing is perfect and I do pretty much prefer freedom any day of the week.
Alternative Four Freedoms
Since writing this article last week, it’s come to my attention that cultural Freedom #0 (or Freedom #1 for us non-programmers) is problematically vague. “Use” could mean anything – including study, distribute, and change. Prior to my looking up the Four Freedoms at freedomdefined.org, I had banged out my own:
My first instinctive cultural Freedom #1 may actually be better than the one I quoted in the article.
Re: Alternative Four Freedoms
Actually, to frame things in terms of ‘freedoms’ is an ethical foundation rather lacking in solidity. This applies to RMS’s ‘four freedoms’ (see Flawed Freedoms), and by simply re-targeting them to culture in general Benjamin Mako Hill reveals their flimsy foundations still further (but hey, at least it’s an attempt at principle – something Creative Commons egregiously evaded).
The ‘freedoms’ should be properly recognised as the liberties suspended by copyright and patent, but are also confused with the epiphenomena of those privileges, e.g. keeping source code secret.
You might like the freedom to read my diary (in my drawer), but you have no (natural) right to read it.
You might like the freedom to produce and distribute further copies of my published memoirs (having purchased a copy), and you have every (natural) right to, but an 18th century statute suspended this right to copy from you (to grant as a privilege for the Stationers’ Company).
It is thus important to distinguish between having liberty restored and utilising a privilege to obtain unnatural powers many covet.
Using a copyright license to restore to the public their natural liberty to make copies is GOOD.
Using a copyright license to prohibit people from exchanging their labour in a free market (if it involves the licensed work) is BAD.
Keeping source secret is incentivised by copyright. It’s properly remedied by abolishing copyright to remove that incentive. Without copyright and its incentive there is then no motive to grant people the unnatural power to sequester source code. Unfortunately, it’s worryingly easy for people to translate ‘freedom to’ into ‘power to’. Just as ‘Power/privilege to prevent you making copies’ has been translated into ‘right to prevent you making copies’.
The ethical foundations of cultural liberty go deeper than a simple enumeration of four freedoms one aspires to.
CC
I actually release my work under CC-BY-NC-ND.
The “Non-Commercial” bit I think is pretty obvious. First of all, if someone else profits because of my work, I should be compensated, or at least have the choice to be compensated.
I actually spell out what “commercial use” means in a FAQ on my site, since that’s a hot-button topic among CC folks. Actually, I really need to make sure this is OK (you’re not supposed to alter CC licenses, and I don’t know if this counts).
The “No Derivatives” restriction is a bit harder to justify. First of all, I care about the integrity of my work. But I also need to tell a story. I had a friend once who released a tape. Another artist simply took his entire tape, added himself occasionally singing and making noises over it, and released it as a “collaboration” without consent. The “No Derivatives” license is to prevent stuff like that.
I’m thinking of removing the ND restriction, though. People will be able to tell if the work has been “bastardized” or not. And people like the person I described won’t care about the license in any case. My only recourse would be to sue, and that’s useless.
In any case, even if the use is not outright allowed in the license, people can still use my music if they get my permission first.
My main concern with releasing it under CC was to make absolutely sure that listeners can share it freely without getting in any trouble whatsoever. The other conditions are important, but secondary.
My big quandry is what to do with music that someone else released on their label. Currently I do not share this myself, and leave that decision up to them. (It helps that the labels I work with are tiny operations who don’t have lawyers.) Once it goes out of print, I ask permission to share it then. So far nobody has refused.
I believe this is how copyright was always supposed to work.
Re: CC
Why do you suppose that concept doesn’t work for Free Software? Do you think there would be any Free Software if programmers clung to that position? They have at least as much justification for it as you.
Re: Re: CC
We FOSS programmers frequently do get paid, but not because people are required to pay for copies or specific uses.
Re: Re: Re: CC
And added into the mix must be that for every line of code you write, you have access to at least a thousand times that many from other people.
At the end, those with skills always make money, at least if there is significant amount of open source opportunities (something that is increasing as more people are recognizing FOSS’s many benefits), and those that share improve their brand in various ways. For example, you might be deemed more trustworthy, honest, and less likely to try to massively exploit a person’s ignorance. Others might also help you through no charge word of mouth or by making other voluntary contributions of various sorts. Opening up also gains you more access and respect among peers (who can also perhaps more easily be called upon to help you solve tricky issues).
Re: Re: Re: CC
And the same is true of artists – except for the tenacious belief that they may somehow win the lottery if they lock up their works with restrictive licenses. The economic mechanics are the same, but programmers have embraced them while artists have not (yet). Free Software is 20 years ahead of Free Culture.
Re: Re: Re:2 CC
Free software played a key role in creation of the Internet itself. Also, software as a whole is much newer than art, and essentially being born in latter half of the 20th century means it was created into the new empowered digital era context.
Re: Re: CC
Why do you suppose that concept doesn’t work for Free Software?
Lots of reasons. First of all, it goes against notion of absolute user freedom. Second of all, actually paying everyone who contributed code would be a logistical nightmare. Third of all, it would effectively mean that nobody could ever possibly make any money whatsoever off of FOSS software without infringing on the license, and nobody in the Free Software movement is against making money.
And of course they do get compensated – with working software, that they are free to use and abuse as they see fit, free of charge. (That’s how I first got involved.)
None of this really applies that well to art, except the “user freedom” part of course. Which, I’ll admit, is the most important part.
Not many people in the FOSS movement would deny anyone the choice to get paid to program, since half of them do that as a day job.
Incidentally – for whatever it’s worth, I actually define commercial use as either selling access to my music, or using my specific music to earn money (using it in a car commercial, for instance). So, posting it to an ad-supported music blog would not count as a commercial use. The “car commercial” bit is really the only thing that separates it from a “share-alike” license.
I’m still trying to work all that out, so please chime in if you have any ideas or criticisms.
Re: Re: Re: CC
One other difference between art and software:
If you do get paid to program (FOSS or not), it’s a flat rate or salary. Even if you work for a company that sells software, you don’t get royalties from the sale. So, if a programmer gets paid to write code, it won’t make a difference to him or her financially whether anyone actually pays for the software or not.
With most forms of art (including mine), the opposite is true: I don’t get paid a dime for the time I spend making music, so if I want to make money, I have to do it some other way. Selling copies is one way, licensing it for commercial use is another. (The second seems less offensive to me somehow.)
At the moment I don’t sell any physical copies of my CC works, but I think I might, just to see if that pans out. (The music itself will remain CC of course.)
Re: Re: Re:2 CC
>> First of all, it goes against notion of absolute user freedom.
Not to try to invoke charity to solve this problem but there are billions of dollars donated annually voluntarily by people who like the work others are doing for society and want them to keep going. Do note that those accepting the money go out of their way to advertize and promote themselves.
Additionally, when a person has to pick who to patron, most things being similar, they will usually vote for whoever they want to promote as a part of society.
Further, there are many things a person in not interested in doing (the term “scratch your itch” might be familiar). For starters, you can’t do everything for everyone else. Hence, people will only be incentivized to do various things (eg, a particular personal customization or support) for money. Huge industries exist of people who get paid exclusively for their time leveraging their skills without a cent of royalties. If they can do it, so can software developers. With software, the tools of your trade and much education can actually be $0.
>> Second of all, actually paying everyone who contributed code would be a logistical nightmare.
As would paying everyone who picks up some trash from the street.
Many people that contribute already gained by having the full body of source (and for many works) for $0. Many others find that it is less work in the long run to contribute a fix they found or an extra addition to the central project rather than try to maintain their code as the main body changes over time. Naturally, they may have resolved the fix in order to improve some aspect of their business or personal life and so already gained. They might even depend on that software for a crucial part of their business. Others use contributions as advertizing for their other products or services and as an indication of their skill and perhaps even charitable nature.
There are contributors who find value in having their work be recognized as a high quality work that stands out enough that others prefer to share that work over others. They will likely get many offers (including grants) that others will not be able to get, and these need not be offers to strictly (or at all) code even more “community” software.
>> If you do get paid to program (FOSS or not), it’s a flat rate or salary.
FOSS promotes small businesses because of the diverse number of opportunities opened up and the fact one of the major hurdles to competing with large companies has been conquered.
If you offer support (customizations, branded products, etc), for example, then you will generally gain more the more people use your product.
>> I don’t get paid a dime for the time I spend making music
Many people code software under the same terms, or don’t start making money until much later on.
I don’t think software is like typical art in numerous ways, but I think each has many opportunities to work under terms that allow commercial derivatives, and I particularly like copyleft terms to help even the playing field in today’s world.
>> At the moment I don’t sell any physical copies of my CC works
Others might come up with ideas for you and share money in exchange for endorsement. Also, you might actively seek partners to help you build a larger product that simply the music itself (eg, music videos, movies/animations featuring the music, etc). I would also spend time thinking up of ways you might be able to contribute your skills. Consider even becoming a major remixer of your own music (and that of others). Anyone who likes it will perhaps like even more a remix adapted to a special situation (eg, to help them sell their business or for a wedding or…).
In fact, seek out radio stations and offer your services to their advertizers (car music). You can charge higher rates if you don’t want to become a slave to this particular type of job (so only those that really want your help and have money will call you).
Re: Re: Re: CC
I’m still trying to work all that out, so please chime in if you have any ideas or criticisms.
I’ve written a few articles that address your issues, which are currently in the Techdirt post queue – stay tuned!
Re: Re: CC
Free software programmers (of which I am one) rarely charge for the work after it is completed. Mostly they are compensated for the time, effort and knowledge used whilst producing the software. That is an hourly rate or salary of some kind.
Once free software is released it is rarely charged for as it makes little sense to charge for something that you are permitting others to distribute without charge.
But with artwork (the production of which I am also involved in) I can see why people may be concerned over commercial use of their work. For example a musician may not prefer their work to be used to promote a certain product or company whose ethics they oppose.
ND is a waste of time I agree but I use NC simply to make commercial-users come and ask me first. In the end I get to define what I deem is inappropriate commercial use of the work. Education or simply reproducing on a blog with adverts will generally get a “yes” when asking. Somebody using a work on a site promoting a product I ethically oppose would get a “no”. Somebody using the work in a (general release) movie or advert will be asked to provide me with a cut of the profits.
You can argue all you like about whether users should have to come and ask first but standard copyright forces that requirement upon even non-commercial users these days. CC-By-NC-SA is so far the best compromise I have come up with.
Oh and use of NC is not blanket on my works either. You seem to imply that creators will always choose NC or not. Mostly I choose the licence which is appropriate for the work. An educational text, drawing or video will not get NC. Work for entertainment purposes only (music, graphic, video) might get an NC or not depending on the work really. I’ve never licenced with an ND.
Re: Re: Re: CC
>> For example a musician may not prefer their work to be used to promote a certain product or company whose ethics they oppose.
I think I appreciate this view because I have had it many times.
Keep in mind that if you use a typical open source software license, people with ethics you oppose might be using your software to further advance their causes.
I believe in SA in order to help prevent exploitation by those with many levers already and who tend to give back very little. If they use your work, they have to open up. Let everyone use your work, and the one that stands out the most is the one that adds the most; thus, competition will promote others to effectively give back (to you and others). In all cases, you gain extra from this competition as principal contributor. You should prepare yourself to take advantage of that.
Also, a “trick” in commerce is that sometimes only by giving free first can you gain more. Once someone is using your work to success, they will be haunted by guilt or the thought of bad publicity should you come knocking with a fair offer and they not treat you with respect. Also, you can come to those having less success and offer further services (they’ll pay for your time and endorsement in order to gain competitive advantages). You can give to everyone, pressure those with low ethics, and endorse those you like. [You still preserve some degree of tit-for-tat compensation through SA.]
ND promotes no exchange of money in a world where exchanging money is necessary because of how much we depend on others in order to maintain our standard of living. [I understand you are simply placing a throttle on commerce and not abolishing it, but there might be more good uses stopped than bad uses.]
Re: CC
“I had a friend once who released a tape. Another artist simply took his entire tape, added himself occasionally singing and making noises over it, and released it as a “collaboration” without consent. The “No Derivatives” license is to prevent stuff like that.”
The “by” clause takes care of that on it’s own.
from http://creativecommons.org/licenses/by/3.0/
“Attribution ? You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).”
(emphasis mine)
Calling the derivative version a “collaboration” implies that the original creator has endorsed the remake. The remixer violated the terms of the licence. The additional “nd” is unnecessary.
Re: Re: CC
Aha, I didn’t realize that. Thanks.
Re: CC
The problem with ND is that the author/creator cannot judge what their users/public will find enjoyable/beneficial. Let anyone remake things, and let the public decide whether they are good. Perhaps what would be better is HD — Honest Derivative: the reuser must state honestly what they did with the source.
Principled Libertarian IP Opposition
Great piece by Nina. I myself don’t even like share-alike/copyleft, for reasons given in Copyright Is Very Sticky!, though I understand the reason for this choice. I usually prefer CC-BY (attribution only), but of late I’ve been wondering if I should just use CC0, even though there maybe validity problems.
The various software license favored by the free software crowd rely on copyright. We need to come out strongly against IP on principle–and based on the principle of the sanctity of property rights, which the artificial IP monopoly privileges granted by the state only contradict and undermine. See my “Eben Moglen and Leftist Opposition to Intellectual Property,” “Thick and Thin Libertarians on IP and Open Source,” and “An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State“.
Re: Principled Libertarian IP Opposition
What about dual licensing under both cc-by and CC0, such that cc-by would act as a fallback in case cc0 should turn out to be invalid.
Re: Principled Libertarian IP Opposition
Not everyone shares your views about the state, but even if they did or came close, you are advocating setting example of peace and freedom by dropping all forms of leverage first. It’s debatable whether that is the best path. You might be right that we should appeal to ethics and something higher. In any case, for those that don’t know, copyleft is a way to pressure openness in a world where anyone else can still leverage copyright (not to mention patents). Many libertarians have no problem with trade secret. I think in a non-ideal world, trade secret is frequently greatly abused. As long as we have so many lopsided situations and where some are surrounded among a lot more advantages than others, pressuring those with the significant trade secret advantages to open up or work on their own gives an overall more level playing field for the majority. I think I would be willing to dump copyright for everything, but until that happens, it’s copyleft for me.
Re: Re: Principled Libertarian IP Opposition
I have a problem with ‘trade secret’ if it means suspending the individual’s natural right and liberty to communicate.
We’re not exactly talking about someone publishing something that maliciously endangers someone’s life are we?
Trade secret is about being able to punish someone for disclosing a corporation’s secret design or recipe simply because it ‘endangers’ future profits. We’re not even talking about physical harm to a living being, but fiscal ‘harm’ to a legislatively created entity.
Anyone calling themselves a libertarian who believes the individual’s freedom of speech should take second place to an immortal corporation’s profits has lost sight of the meaning of liberty.
As to ‘leverage’, this is surely just a euphemism for the power obtained through privilege. It’s the Boromir argument – “We should not destroy the instrument of injustice, but use it for good”. Copyleft is a good attempt at enabling an author to undo the privilege that has been granted to them, but it is a tragic fallacy to conclude that the privileges should be retained on the statute books in order that the good of undoing them can be continued.
Re: Re: Re: Principled Libertarian IP Opposition
I likely agree that no copyright will likely do more good than harm, even in talking about software.
Transitioning a bit… I recognize that we live in an imperfect world. First, while copyright exists, I think “copyleft” is preferable over public domain (I wanted to make this point clear for anyone else reading). Second, it’s not just copyright that is an ill in society, so I would not a priori (based on my set of principles) immediately agree with the notion that immediately abolishing copyright would be better than all possible alternatives wrt copyright law. I am intrigued by the notion copyright would be abolished, but the point is that I think we need to move towards a better society through balance, which might mean keeping some non-ideal laws (or components thereof) so long as they might prevent worse wrongs.
My references to trade secret were intended along this same vein, specifically, using imperfect copyright law in a way that would motivate the “voluntary” unmasking of trade secrets. I don’t think trade secret in software only exists because of copyright law. I also think many consumers that don’t appreciate some potential dangers to allowing a corporation to have certain secrets in software might be led by various understandable pressures to vote such software into wide use and have it affect negatively those that want to avoid such software (through “network effect” pressures). It’s a property of software that you gain much from being able to faithfully interact with other software, and trade secret advantages greatly work against free markets in this case. The best solution would be to educate and entice software users with FOSS, but sometimes this is easier said than done (especially when those working against that message have significant resources).
In the ideal case, there would be much greater wisdom passed on among society’s groups; a fairer set of inter-person agreements (“laws”); sufficient preparation and knowledge by most groups to be able to combat deception, bribery, force, and other tools that might lead one group to gain significant leverage over most others without any system in place to speak on behalf of the “conquered”; more even opportunities in the early years of life for any given baby when contrasted to any given other; the more vulnerable would not have to fear from those in near proximity and who might rule “in agreement” with an iron fist. The hope is that the “democratic” state leads us closer to this fairer society (and to improvements over our current status) than would be the case without any state at all. — Easy to put this to paper, but, as usual, the devil is in the details, and theory does not equal practice.
In any case, many who value freedom would probably agree that copyleft would be an improvement over the current default copyright (and I know you were making a different point, but I was trying to explain my position).
Re: Re: Re:2 Principled Libertarian IP Opposition
If you’re going to use a CC license then the CC-SA one is the most libertarian – restores more liberty suspended by copyright than the others. Even so, it’s not as libertarian or as copyleft as the GPL.
One could also covenant to the public that no copyright arising in one’s work will ever be used by the holder against any individual for acts that they are naturally at liberty to do – nor will the copyright ever be assigned to anyone not so covenanting.
I suspect we should soon start migrating to this Hippocratic oath rather than relying upon fairly ephemeral licenses being attached to published works (especially as Czechoslovakia is showing how they may be undermined). It would be interesting to see a law deny an author their natural right to identify themselves as the author of their work, and the right to declare that they will not sue people for enjoying liberties otherwise suspended by copyright.
Re: Principled Libertarian IP Opposition
The property argument is one — certainly a good one — but there are others. You can say IP infringes freedom of communication and personal liberty generally — which is nearby but not quite the same. Also, I think you can say rules of IP and copying-restriction fail, to some degree, the moral principle of universalisation.
Everyone can choose their preferred one, but overall there can be a strong agreement. Good!
Software IS culture, yes, but so is everything else. What is not ?
God suing your ass for copyright infringement !!! really.. sorry that is SO unfunny on so many levels.. but fair enough. (art is opinion right?) I guess that is my problem if I dont see the funny side of that ‘joke’ that God would sue you for quoting the Bible, for copyright infringement.
(and the little circle guy did not “copy” the statement, he just said it.) But my problem not yours :)..
My ‘other’ problem is this:
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.
Well software **IS** culture, but so is bank robbery, so is language, so is fashion, so is WELL EVERYTHING..
Culture is what ? its knowledge and skills learned from others.
Wiki-
the creation and use of conventional symbols, including linguistic symbols and their derivatives, such as written language and mathematical symbols and notations; (b) the creation and use of complex tools and other instrumental technologies; and (c) the creation and participation in complex social organization and institutions.
So on that basis everything is ‘culture’, but individual creations based on cultural knowledge is and can be new, inventive, inventions, or now subject to copyright.
There is a ‘culture’ of software development, but if the result of that culture is a new great thing, something that can be patented as an invention then that is what happens, culture advances by individual and incremental advancements and eureka moments sometimes.
If language is culture, then a book written in that language is an original works, a product of culture (the language), and creative work (what that language is saying).
Culture creats ‘software’ but it does not create specific creative works, people do that, based on common ‘cultural’ knowledge and creative invention.
software is cultural, but so is communism, so was the US civil war, so what the nazzi party, so was the KKK so was the FSF so is the native americans, so was the Myans.
Its all culture, its all learned behavours, trying to tie software to ‘culture’ is a long stretch, and a brave one. You cannot have software, or language, or civilization without culture, there is no disconnect.
So looking at it from another perspective, what is **NOT** culture ?
You’ve said software IS, so what is NOT ?
Re: Software IS culture, yes, but so is everything else. What is not ?
God suing your ass for copyright infringement !!! really.. sorry that is SO unfunny on so many levels.. but fair enough. (art is opinion right?)
I can’t decide if these cartoons are more creepy or more pathetic. They’re sort of like Jack Chick tracts for the anti-IP set.
So looking at it from another perspective, what is **NOT** culture ?
Software is necessarily culture in this argument, not because the argument makes sense particularly, but because it has the desired rhetorical outcome, which is to try to convince people that software must be shared.
Why? Because culture, you see, is shared. It’s never “my” culture, it’s always “our” culture. Many find the idea of “owning” something you personally create as palatable, but “locking up shared culture” as unpalatable.
So, the rhetorical trick is to try to convince people that software isn’t very much like something created by an individual; rather, it is more like part of a nebulous and public shared culture.
Re: Re: Software IS culture, yes, but so is everything else. What is not ?
Software, like all things used for interaction within society, demands habits and standards be created, implicitly if not explicitly. These effects exist at the level where you interact directly with the software (and/or through it to other people) as well as software interacting automatically with many other layers of software. In all cases, there is a problem with standards that would give one particular group too much control over others’ entry and participation within the market (and life).
There is a serious problem with software patents. As for copyrights, FOSS has been making out decently, partly because of the pressures created by copyleft and by the fact it’s so cheap to create and share software, meaning that many are able to participate to help keep FOSS growing and competitive.
Re: Re: Software IS culture, yes, but so is everything else. What is not ?
Software, as any other culture, is *both* attributable to individuals (somewhat), *and* is a shared commons. And that is simply because they are abstract things that can be copied. No ‘trick’ is needed, it is just a basic physical/logical fact.
Re: Missing commandments
XI. THOU SHALT MARVEL AT ALL MY CREATION AND IN MY LIKENESS THOU TOO SHALT CREATE ? THY DESIGN SHALL BE JOINED TO MINE AND ALL UPON EARTH THAT IS MADE IN ITS FORM SHALL BE SUBJECT TO THY WILL, FOR AS LONG AS THEE SHALL LIVE.
XII. THOU SHALT SCRIBE AND SHARE MY WORD, YET THOU MUST NOT SCRIBE, NOR SHARE AMONG A GATHERING, THE WORD OR GRAVING OF THY NEIGHBOUR WITHOUT HIS LEAVE, WHILST HIS BLOOD LAST.
(From Commandments on Creation and Copying)
yawn
you people and your licenses.
grownups toss their contributions in the pot without strings attached.
why don’t you grow up?
Re: Re:
Licenses are really for those superstitious folk who still believe in the power of 18th century privileges (‘attached strings’), and in the case of the GPL they did work, but then that may be because programmers are trained to adhere to rules.
For culture in general, licenses are more a means of the publisher expressing their litigious intentions, from some to none.
People who have ‘grown up’ as you put it are today termed ‘pirates’. And I’m not talking about the copyright reformists who’ve hijacked the term, i.e. the so called ‘Pirate parties’.
Enabling the masses to bug-fix and re-mix
I do think the makers of Patent Absurdity are missing an opportunity, but I can understand some of the worries or even desire not to have others mess with their work. Also, they are putting lots of faith in formal channels. They should unleash the message on the population instead. In any case, the contribution is surely appreciated. [but yes not all of us have the resources or coordination to produce a full feature.. or would prefer to add to what exists rather than re-invent the wheel]