Thinking about licensing

In essence, the problem is that Creative Commons allows people to grant others freedom, but with very specific and often mutually exclusive conditions. And that’s only sort of freedom.


delacroix-y-la-devolucionThe Indianos put all their work in the public domain. As I began to translate their books, I didn’t follow their lead, but rather, used a Creative Commons license. They didn’t say anything, and I didn’t give it any further thought. With their new Juan Pop project, however, I’ve felt the need to sit down and really think through my position on licensing.

I found a number of reasons not to use CC licenses, in spite of the thoughtful way the idea was developed. The first is the sheer complexity of the system. There are multiple steps in choosing a license, and while none of them is particularly tricky, it does lead to a wide variety of combinations of options. This allows for fine-grained control of content… in theory. The reality, and the second reason, is that people who re-use content are terrible about complying with the specifics of CC licenses. Many of them don’t know or don’t care about the differences between them. It’s not easy to find statistics on this (particularly since people who do comply with the licenses often do so by not using the content at all, leaving no record), but it is easy to find anecdotal evidence in the form of content creators complaining about it. What this means is that the CC system is very difficult to enforce.

There are also reasons not to use the specific elements of the system, even in the absence of the above problems.

The Attribution aspect is something nearly every creator wants, regardless of any other consideration. It’s such a universal expectation that in most jurisdictions, it’s considered a “moral right” resulting from the act of creation itself, not the license. This makes it redundant under CC, which doesn’t even make it an option, but includes it in every permutation of its licenses (except CC0).

The Non-Commercial option is very common. Many people don’t think it’s fair for someone else to profit from their work. (I think they overestimate the chances of that happening, but that’s a side issue.) This, however, shows a misunderstanding of what the commons is. Throughout the history of the idea of the commons, it has been the source of people’s livelihood. The transition from a physical commons to a knowledge commons should not change that. If it does, then the commons is merely an academic exercise, and not a head-on challenge to the extractive corporate economy. If we only share our hobbies, then nothing has changed, nor will it.

The No-Derivatives option, frankly, is not very popular. People can tell it’s self-defeating.

The Share-Alike option, on the other hand, is quite popular. And it’s the one that kept me using CC the longest. Even those of us who are OK with others using our content for commercial purposes find it repellent to think that those others could wall off their derived works from the commons, refusing to pass on the benefit they themselves had received. It’s such a compelling argument that the P2P Foundation is promoting a whole new license to prohibit exactly that. But, as discussed by Dave Wiley more than eight years ago, Share-Alike-licensed content can only be combined with other content with an identical CC license, which is very limiting—and that’s really just a subset of the general compatibility problems with CC-licensed content (updated various times and still complicated). This really defeats the purpose of the commons, as Wiley illustrates with another graphic. As the saying goes, the great thing about standards is that there are so many to choose from.

In essence, the problem is that Creative Commons allows people to grant others freedom, but with very specific and often mutually exclusive conditions. And that’s only sort of freedom. Does that mean people who use CC are evil, and that I’m boycotting their content? Certainly not. It simply means I find it simplest and most effective to use the public domain (with a fallback to CC0 in jurisdictions that don’t recognize the public domain) to build the commons.

That leaves the question of free riders, meaning those who would copyright their derived works. At this point, I don’t believe that a further fragmentation of licenses that are complicated to apply and almost impossible to enforce will serve to both build the commons and prevent this problem. Of the two, my priority is the former, but I do still want to keep corporations from strip-mining the commons.

One way might be to simply ignore them and keep doing our own thing. It’s important to remember that they cannot remove anything from the public domain, nor can they copyright an idea in the public domain itself, only a work derived from it. So, if future iterations of an idea in the public domain are better than those derived works, then the gamble of having produced them will not pay off. Similarly, if small workshops make and sell the products in short runs, not bothering to copyright them, large corporations simply won’t be able to compete. Copyrights take a minimum of three months to register, and that’s enough time for P2P production to move on to something better. In fact, the threat of a copyright might actually spur innovation.

Another consideration is that corporations creating derived works doesn’t have to result from content being in the public domain or in the commons. They repeat each others’ ideas all the time, in spite of trademarks and copyrights. It’s the idea that attracts attention, not how it’s licensed.

Finally, I think our greatest defense against corporate enclosure of the commons is each other. If the commons is very active, and also very public, that will make it harder for corporations both to compete with it and to expropriate value from it.

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