[okfn-discuss] Removing the nc: why license restrictions on commercial use are problematic and (frequently) unnecessary

[Rufus Pollock]

Tom Chance wrote:
> Ahoy,

First I want to say thanks to both Tom and Saul for their extensive 
responses on this topic which I have found really interesting.

> On Thursday 27 April 2006 08:16, Saul Albert wrote:
> 
>>Rob Myers says that the GPL is like a union or a guild - a way of
>>protecting ones labour from expropriation/exploitation - so you never
>>find yourself unable to benefit from the fruits of it. NC licenses are
>>just ridiculous in this context. It locks peoples labour into very
>>specific contexts - mostly academic or the hazy 'third sector' of NGOs,
>>quangos, and voluntary organisations that are pretty much commercial if
>>you regard students, governments and receivers of charitable funds and
>>services as 'clients' - which most of these organisations do.
> 
> 
> Well it locks Free or un-permitted usage into those contexts. But if you had a 
> clear and much tighter definition of commercial and a transparent way of 
> getting permission, by means of something like Magnatune's license clearing 
> web site, then you're in a difficult position. It becomes easy to buy 

This would obviously be a big step forward however I still think we 
would want to consider:

a) the discouragement of commercial users from participating in the 
community. For example in a community with a default NC restriction it 
seems hard to see how a 'commercial' company would be willing to allow 
its staff to work and contribute to that community. This could be a big 
loss (who once imagined the contribution that IBM/Oracle/HP etc would 
make to F/OSS software).

b) we are not just talking about music (the original example was of 
video being produced documenting deptford's regeneration). In music a 
universal, cheap and simple clearing mechanism still seems pretty 
distant and in other areas I don't see any such projects being even 
considered

c) What particularly concerns me -- and animated my original post -- was 
the issue of NC being used as a default just because people want to 
exclude certain types of endeavour not the situation where it is being 
used as income-generating strategy. I was also pointing out that, in 
many cases, such restrictions, while having serious impacts on the 
'openness' of the work, didn't actually generate much extra benefit for 
those imposing them.

I think I made a similar point about the use of the NC restriction on 
those nice pictures of BMXers on remixreading:

http://www.remixcommons.org/node/717

Does the poster seriously think it likely he will receive income from 
those pictures? I doubt it. Rather I think it is a case of a 
'seek-permission' attitude where the poster has thought 'Oh commercial 
use I don't want that happening without them asking' -- an attitude I 
can completely empathize while also thinking it mistaken.

> permission at a fair rate, most commercial users who fit into your categories 
> would be happy to do so, and anyone else (e.g. your students) would be let 
> off the hook. One could easily argue that such a system might reduce overall 
> usage but that it would vastly increase your chances of benefitting from the 
> fruits of your labour commercially.
> 
> This benefit may be central to your artistic freedom, which might depend upon 
> being able to allocate a chunk of time, buy certain materials that your other 
> wage can't cover, or some other requirement. Your real freedom may be hugely 
> increased by such an NC system.

I want to make clear that I quite appreciate this point (it was one that 
was raised at the FC-UK meetup and on the fc-uk-discuss mailing list). I 
also think it illustrates the different uses of the word 'freedom'. On 
the one hand you have, as used here, 'freedom' for the artist/programmer 
etc in terms of having enough money. Alternatively as used in 'free 
software' -- and possibly one sense of 'free culture' -- one means a 
situation where there is liberty to use the work without seeking 
permissions (at least as long as they abide by certain rules such as 
that requiring you to share back). In this second case it is 
hoped/assumed that others will share like you did increasing /your/ 
freedom to access and reuse other's work but the freedom that /you/ 
primarily increase by making /your/ work open/free is the freedom of 
/others/.

> And really, what benefits of non-commercial exchange are we talking about 
> here? Talk to some small/new record labels and their artists. They know 
> perfectly well that people copy their CDs and that helps them grow their 
> audience, but at the end of the day they make a tiny amount of money from the 
> CDs, and generally lose money touring, so they want to ensure they can 
> squeeze every penny out of their recordings. Encouraging free commercial use 

This is really interesting piece of information Tom. Do you know where I 
could find more on what the revenues of small labels and their artists 
are? I had assumed that, proportionally, these artists made more money 
from gigs than they did from selling their music but you are indicating 
the opposite.

> of their work won't help them an awful lot, even if it is the Right Thing To 
> Do. Cutting off some of the few commercial opportunities they have isn't 
> going to wash. Wagging your finger won't convince them otherwise.

I completely agree that wagging the finger won't convince anybody much 
-- and I don't think I (or Saul) would want to adopt such an attitude. 
The real solution one feels at least in this area would be to combine 
full open access with some kind of levy scheme that ensured artists were 
properly remunerated.

At the same time one would want to think hard about the costs and 
benefits both to the community and to the producers of putting in the NC 
restriction. How often is the NC restriction really leading to revenue 
for the artist that they wouldn't get without it? (In this context 
consider the study of Magnatune which shows that while you are allowed 
to pay anything between $5 and $18 the average payment is $8.20)

> 
> 
>>I don't really know why its so popular. It's probably a misdirection of
>>some kind, a way of isolating certain kinds of labour from certain kinds
>>of exchange - maybe a good way for naively ideological producers to
>>limit the scope of their activities to a kind of save zone of
>>irrelevance :).
> 
> 
> Maybe. Or maybe if you spoke to more people who use NC you'd realise that, for 
> many of them, CC BY-NC-SA represents an ideal social contract that ensures 
> they will benefit from the fruits of their labour most fully. They may be 
> wrong about that, largely because of the practicalities of the license and 
> actually getting permission, but those could be ironed out as I suggested 
> above. Saying "I want a slice of the action" is pretty commonsense, if only 
> it can be guaranteed without making things worse for yourself.

While I agree it is commonsense it is exactly the kind of commonsense 
that sits ill with a 'share and share-alike' philosophy and leads to few 
positive externalities. It is also pretty close to the reason most 
people use full copyright: 'if you want to use it you can just come and 
ask me' -- and we know the problems with that. This doesn't make it 
wrong in any way at all -- just as I don't think it is any 'wrong' for 
people to use copyright (it's their right to use whichever license they 
want).

> I think there are really two issues here. First, why the current NC system is 
> flawed. There can't be much mileage left in that debate, but there's lots of 
> scope for good proposals to implement a better NC-type system. Second, why 
> any NC system is flawed, and there I've only come across a handful of erudite 
> opponents (Rob Myers being one) and lots of simplistic libertarian rebukes :/

I don't think it would make sense to say 'all NC systems are flawed'. 
It's horses for courses after all. However for me it is important to 
have some idea of the community norms. After all we are going to need to 
draw a line about what is 'open' content is at some point especially 
when it comes to questions of what gets hosted and where. I am happy for 
people to write proprietary software, copyrighted books etc etc but 
knowledgeforge.net/archive.org/remixreading won't host it (in this 
regard it is worth noting that at knowledgeforge the position is to only 
go with work licensed under terms compatible with the open knowledge 
definition or open source definition. archive.org and remixreading 
meanwhile both allow nc restrictions but my understanding is that 
remixreading wouldn't host Creative Archive material with all its extra 
restrictions).

With a 'copyrighted culture' you've got an overly restrictive (and 
overly extended) default that creates huge transactional burdens and 
complexity. So with restrictions on commercial use: we create a bunch of 
restrictions -- less burdnesome than with traditional copyright to be 
sure -- but burdensome nevertheless that in /many cases/ are just acting 
as obstacles while doing little for the producers of the work. Sure, 
just like full copyright, nc provisisons give the creator more control 
over the use of their work but it's a control with large attendant costs 
for the community and often few benefits for the creator.

Regards,

Rufus