[okfn-discuss] More on the non-commercial issue: discussions with playshakespeare.com

[Rufus Pollock]

Over the last week or so I've had quite a bit of discussion with Ron 
Severdia of playshakespeare.com who contacted me after seeing the 
article on newsforge about open shakespeare (I cc'd my initial response 
to Ron to the list).

playshakespeare.com aim is to produce a very high quality 'free' edition 
of shakespeare that is suitable for performance and among various other 
things we discussed the question of the licensing came up. In particular 
  what specific license did they plan to use for their final work. The 
main point to come out was they want to restrict non-commerical use 
(there is some confusion here as they plan to use both CC by-sa-nc and 
the much more open/free Free Art license but from discussion it is clear 
that their intent is to restrict commercial use).

This seems rather unfortunate for several reasons (e.g. it will prevent 
openshakespeare being able to use the text they produce). But of more 
importance it illustrates the way in which the non-commercial option 
gets (mis)used and why it is (mistakenly IMO) seen as attractive.

Regards,

Rufus

[Excerpted from the most recent email. The original writer is Ron and 
the most recent comments are from me]
>>>>> ideas from each an include many of our own to come up with  
>>>>> editions  that we feel are the best quality. And it's all done  
>>>>> with the idea of  creating a new, free collection of  Shakespeare's 
>>>>> works.
>>>>
>>>> That sounds great. What license are you going to make the  material 
>>>> available under?
>>>
>>> *The Free Art License and the Creative Commons Attribution No- 
>>> Commercial Share-Alike License.*
>>> *
>>> *http://www.playshakespeare.com/forum/viewtopic.php?t=172*
>>
>> Why use CC non-commercial share-alike rather than just CC- 
>> attribution? If i understand correctly you are planning to dual- 
>> license and the Free Art License is, in essence, equivalent to CC- 
>> attribution. In that case as a licensor one would always use the  Free 
>> Art license and not the CC one. 
> 
> The Free Art License is a French initiative, which carries very  little 
> weight in the U.S. (where I am). Creative Commons is far more  pervasive.

Sure.

> The two differences between the license I set up and the license you  
> suggest are:
> 
> 1. Nobody is allowed take the text and sell it in any format.
> 2. If someone else takes the texts and alters it (or improves it in  
> their eyes), they can't sell it. They have to give credit that the  text 
> they started with is from our site.

Have I misunderstood the Free Art License then? For it states (quoting
from your link above):

2.1 FREEDOM TO COPY (OR OF REPRODUCTION)

You have the right to copy this work of art for your personal use, for
your friends or for any other person, by employing whatever technique
you choose.

2.2 FREEDOM TO DISTRIBUTE, TO INTERPRET (OR OF REPRESENTATION)

You can freely distribute the copies of these works, modified or not,
whatever their medium, wherever you wish, for a fee or for free, if you
observe all the following conditions:
- attach this license, in its entirety, to the copies or indicate
precisely where the license can be found,
- specify to the recipient the name of the author of the originals,
- specify to the recipient where he will be able to access the originals
(original and subsequent). The author of the original may, if he wishes,
give you the right to broadcast/distribute the original under the same
conditions as the copies.

Note the '... for a fee or for free ...' in section 2.2

> It would be inappropriate for us to put all this work into a free  
> version of the plays to turn around and have someone take advantage  of 
> that by printing up a copy and selling it.  We won't sell it (if  we 
> did, it'd still always be free on the site anyway). So why should  we 
> allow someone else to make money off of something we intended to  be 
> free and accessible?

I'm not it would be inappropriate. After all preparing a proper printed
edition costs money (paper, binding etc is not zero-cost) so it needs to
be sold for some price. Furthermore in a situation where the underlying
text can be used freely both for commercial and non-commercial use
competition among printers would serve to prevent anyone extracting any
'undeserved' profit. Thus I don't see any reason to prevent 'commercial'
publication given that one is ensuring the continuing freedom of the
underlying text.

>> Furthermore I should mention that we don't consider the CC non- 
>> commercial licenses as being 'open' licenses (see the open  knowledge 
>> definition at http://okd.okfn.org/ for more details) so  if the work 
>> was only available under CC-non-commercial we wouldn't  be able to use 
>> it.
> 
> 
> I'm not sure I wholly understand the purpose behind this statute. If  
> you're the creator of a works intended to be freely accessible by  all, 
> why would you allow someone to reproduce and charge people money  for 
> it? Doesn't that go against the original intention? If that's a  
> deal-breaker for you, then I'm sorry.  Free means free (and free of  
> charge), not "free only if you have access to the internet."

The simple answer is that they are *still* freely accessible if some
individual wants to try charging -- and frankly how far would someone
get charging for an online edition when there is one which is 'free'
just as easily available. Free means freedom to access, redistribute and
reuse not necessarily free of cost. As I have already pointed out a
physical book costs money to make so if you require that any book made
using your text is distributed for free I don't see how anyone would
make one. That said the whole point is that if a work is free it will
not be possible for anyone to overcharge for the work because of free
competition -- if you suddenly start charging your version for $100 i'm
free to offer mine for $10 or even $0.

I'd also point out that the Free/Open Source Software community have
been following this line for many years and seem to have done fine (the
Open Knowledge Definition is a straight port of the Open Source
Definition). In particular I'd point out that the Open Source Definition
specifically prohibits open source licenses from restricting commercial use.

To reiterate: requiring zero-cost distribution does not increase
freedom/opennes it reduces it. Furthermore the very provision of an
free/open version of the text combined with the operation of competition
is enough to guard against the 'being taken advantage' that you mention.

Regards,

Rufus

[snip]