[okfn-discuss] Fwd: [FC-discuss] The Future of Creative Commons: Examining defenses of the NC and ND clauses

Thu Sep 20 12:45:32 UTC 2012

Read this on a web page:
http://freeculture.org/blog/2012/09/19/the-future-of-creative-commons-examining-defenses-of-the-nc-and-nd-clauses/

---------- Forwarded message ----------
From: "Students for Free Culture" <webleader+rss-bot at freeculture.org>
Date: Sep 19, 2012 10:17 PM
Subject: [FC-discuss] The Future of Creative Commons: Examining defenses of
the NC and ND clauses
To: <discuss at freeculture.org>

_QuestionCopyright.org has just published this guest editorial by Kira,
who serves on Students for Free Culture's Board of Directors. This is a
follow-up to "[Stop the inclusion of proprietary licenses in Creative
Commons 4.0][1]" but instead of focusing on the problems with NC and ND,
the editorial draws upon defenses of NC and ND to highlight how they go
against the stated mission of Creative Commons. [You can also read the
original post][2]._

![Creative Commons licenses arranged all in a row.][3]

A few weeks ago, Students for Free Culture published a detailed and
thoroughly cited post [calling for the retirement of proprietary license
options in Creative Commons 4.0][1]. Already the story has been picked
up by [Techdirt][4] and [Slashdot][5] and it has spurred lots of heated
debate around the value of the NonCommercial (NC) and NoDerivatives (ND)
licenses to Creative Commons and to rightsholders, but not a lot of
discussion has been framed around the official mission and vision of
Creative Commons.

Creative Commons has [responded][6] to the post stating that adopters of
NC and ND licenses "may eventually migrate to more open licenses once
exposed to the benefits that accompany sharing," maintaining that these
licenses have been a strategic measure to approach that goal. The name
Creative Commons itself highlights the aim of enabling a network of
ideas and expressions that are commonly shared and owned or, as we
usually call it, the commons. To be very explicit, one need not look any
further than Creative Commons' [mission statement][7] (added emphasis)
to see that this is what they work for:

> Creative Commons develops, supports, and stewards legal and technical
infrastructure that **maximizes** digital creativity, sharing, and
innovation.

>

>

>

> Our vision is nothing less than realizing the full potential of the
Internet — universal access to research and education, **full
participation** in culture — to drive a new era of development, growth,
and productivity.

The NC and ND clauses are non-free/proprietary because they retain a
commercial and/or creative monopoly on the work. Legally protected
monopolies by any other name are still incompatible with the commons and
undermine commonality. There is no question as to the purpose of
Creative Commons or the definition of free cultural works. What Students
for Free Culture has offered is not primarily a critique of proprietary
licenses, but a critique of Creative Commons' tactics in providing them.
The idea that the non-free licenses "may eventually migrate to more open
licenses once exposed to the benefits that accompany sharing" is a
reasonable one, but one that deserves careful reflection after a decade
of taking that approach.

This line of reasoning is intuitive in a permission culture: that
license options which _sound_ good to rightsholders will lure them into
giving up some restrictions licenses and becoming more comfortable with
the idea of fully liberating their works. Encouraging the use of free
culture licenses then becomes a problem of education and communication
of values, and the question then becomes whether or not the proprietary
licenses make that task easier or more difficult.

Some argue that rightsholders are not ready for free culture and that
they need to be eased into it. Anecdotal arguments supporting this idea
say that people switch to free licenses from the non-free ones once they
learn about how problematic NC and NC are, but there is no evidence to
support this claim. We have no idea how strong Creative Commons'
campaign for free licenses would be if they only provided free culture
licenses from the start, and Students for Free Culture suggest that in
the current climate of copyright and intellectual property maximalism,
what we need is to stretch what is accepted as reasonable position to
take, not sit comfortably within it.

It may be counter-intuitive that only offering free culture licenses
would bring more rightsholders to liberate their works over time, but if
we consider that this would allow Creative Commons to have a cohesive
message behind the licenses they do offer, we can imagine their
educational materials could be much more powerful. More importantly,
they would be expanding the perceived realm of possibility. Students for
Free Culture argue that the proprietary licenses are mainly used because
they are misunderstood and function to reinforce those misconceptions
rather than move rightsholders towards free culture. It is analogous to
telling people to vote for the lesser of two evils to ease them out of
supporting a two-party political system. It may seem practical and
appear to bring more steady and reliable change, but it only serves to
reinforce the status quo.

The popular criticisms of the post are actually very revealing of this
very idea.

All of the defenses of proprietary clauses which have been raised in the
recent debate boil down to these types of arguments: that everything
should be CC-licensed because it is better than "all rights reserved";
that Creative Commons needs to support all the options that
rightsholders want; that not providing more license options is
restricting freedom; and that the non-free clauses do serve worthwhile
purposes even if they are oppose free culture. These arguments are all
problematic in ways either explicitly mentioned or linked to from the
original post, and underscore how much extra work this makes for
Creative Commons.

The everything-should-be-CC-licensed argument:

  * "Big media could adopt NC or ND, but not free culture licenses"

  * "So much is already similarly available, it should all be CC"

  * "The purpose of Creative Commons is to provide a diversity of
options"

  * "Creative Commons isn't an ideological organization about free
culture"

These arguments fail to see the mission of Creative Commons and ignores
that for years they have been moving away from providing more options in
favor of promoting their free culture licenses. Creative Commons does
not exist to provide a licensing option for every possible desire of
rightholders, nor does it exist to slap a CC logo on every work released
under terms similar to what license options they could or currently do
offer. We can keep licenses that big media may use for the sake of
meaningless adoption, or we can focus on the licenses that subvert
intellectual monopolies. Creative Commons could have moved towards being
a highly-flexible modular licensing platform that enabled rightsholders
to fine-tune the exact rights they wished to grant on their works, but
there's a reason that didn't happen. We would be left with a plethora of
incompatible puddles of culture. Copyright already gives rightsholdors
all of the power. Creative Commons tries to offer a few simple options
not merely to make the lives of rightsholders easier, but to do so
towards the ends of creating a commons. By its very name, Creative
Commons does promote an ideology.

The freedom of choice argument:

  * "Everyone's freedom should be respected"

  * "This is an effort to dictate our license choices"

  * "Promoting freedom by taking away choices is hypocritical"

  * "This is just one definition of freedom"

Right off the bat, these arguments miss the fact that the old
proprietary licenses will still exist and can be forked and updated, but
that is beside the point. They not only confuse different freedoms but,
in doing so, also value the legally granted right to restrict freedom
over the freedom to be free from those very restrictions. This is the
foundation of permission culture and the antithesis of the commons.

The NC-and-ND-clauses-are-useful argument:

  * "They serve a purpose even though they aren't free"

  * "A vague protection is better than nothing"

  * "These protect us from big media stealing our work"

  * "Not everyone wants to use a free culture license"

These arguments all seem to be built around the popular discontent with
today's draconian copyright regime, yet they are at the same time
apologetic towards the permission culture which enables it. While NC and
ND appear to empower creators to retain control over their work, it is
crucial to remember what copyright is: a legal construct of private
property and, more specifically, a monopoly. Distributing these
innumerable government-granted monopolies, even to individuals, only
leads to monopolistic organizations that amass ownership and control
over huge sums of our culture. Again, Creative Commons could have
provided a totally customizable framework for rightsholders to pick what
rights to grant for each of their works, but copyright already gives
them that power. Making it easier to do only validates the fears that
made copyright what it is today. Take, for example, the Free Software
Foundation. If they had advocated for any proprietary software/licenses
that were anything "better" than the terms that Windows and OS X are
distributed under, the world would not be as open to the idea of free
software as it is today.

These three types of arguments exclude those that have been made purely
concerned with the interests of rightsholders and the many many
interesting and creative misunderstandings of the license terms and
enforceability. This all serves to indicate that Creative Commons'
current strategy is working against all of the great work they do
promoting a freer culture. People don't need to be convinced that
copyright is a broken system. Instead, Creative Commons should be
focusing on affecting what people believe is an acceptable position,
showing the world that much more is possible, and proving that we can
and are building a free culture.

Creative Commons is at a very important philosophical and tactical
crossroads. The crux of the concern raised by Students for Free Culture
comes down to weather Creative Commons will be locked in by pressures to
serve the interests of rightsholders or be committed to a strategic
standard promoting free licensing towards the creation of an indivisible
and shared commons. The drafting of version 4.0 of the licenses may be
the best and last opportunity to make such a dramatic change, which
underlines the urgency of the suggestion. Creative Commons is perfectly
positioned to critically reevaluate its strategy and make a change that
more effectively promotes its mission, so please heed [Students for Free
Culture's call to action][1]:

  * Send a letter to the [Creative Commons Board of Directors][8] about
your concerns.

  * Publish your letter or a blog post on the issue (and send it to the
list below)

  * Join the Creative Commons licenses development list to participate
in discussions of the 4.0 draft:
[http://lists.ibiblio.org/mailman/listinfo/cc-licenses][9]

  * Contribute to the CC 4.0 wiki pages:
[http://wiki.creativecommons.org/4.0][10]

   [1]: http://freeculture.org/blog/2012/08/27/stop-the-inclusion-of-
proprietary-licenses-in-creative-commons-4-0/

   [2]: http://questioncopyright.org/future_of_creative_commons

   [3]: http://questioncopyright.org/cm/images/cc/cc-all-in-a-row.jpg

   [4]: http://www.techdirt.com/articles/20120828/00585920175/should-
creative-commons-drop-its-noncommercial-noderivatives-license-
options.shtml

   [5]: http://yro.slashdot.org/story/12/08/27/2159217/creative-commons-
urged-to-drop-non-free-clauses-in-cc-40

   [6]: https://creativecommons.org/weblog/entry/33874

   [7]: https://creativecommons.org/about#mission

   [8]: mailto:Hal%20Abelson%20%3Chal%40mit.edu%3E%2C%20Glenn%20Otis%20B
rown%20%3Cgotisbrown%40gmail.com%3E%2C%20Michael%20Carroll%20%3Cmcarroll
%40wcl.american.edu%3E%2C%20Catherine%20Casserly%20%3Ccathy%40creativeco
mmons.org%3E%2C%20Caterina%20Fake%20%3Ccaterina%40caterina.net%3E%2C%20B
rian%20Fitzgerald%20%3Cbrian.fitzgerald%40acu.edu.au%3E%2C%20Davis%20Gug
genheim%20%3Cakhawkins%40mac.com%3E%2C%20Joi%20Ito%20%3Cjoi%40ito.com%3E
%2C%20Lawrence%20Lessig%20%3Clessig%40pobox.com%3E%2C%20Laurie%20Racine%
20%3Cracine%40lulu.com%3E%2C%20Eric%20Saltzman%20%3Cesaltzman%40pobox.co
m%3E%2C%20Annette%20Thomas%20%3CAnnette%40macmillan.co.uk%3E%2C%20Molly%
20Van%20Houweling%20%3Cmsvh%40pobox.com%3E%2C%20Jimmy%20Wales%20%3Cjwale
s%40wikia.com%3E%2C%20Esther%20Wojcicki%20%3Cesther%40creativecommons.or
g%3E%2C%20?&subject=On%20the%20inclusion%20of%20proprietary%20licenses%2
0in%20Creative%20Commons%204.0&body=http%3A%2F%2Ffreeculture.org%2Fblog%
2F2012%2F08%2F27%2Fstop-the-inclusion-of-proprietary-licenses-in-
creative-commons-4-0%2F

   [9]: http://lists.ibiblio.org/mailman/listinfo/cc-licenses

   [10]: http://wiki.creativecommons.org/4.0

URL:
http://freeculture.org/blog/2012/09/19/the-future-of-creative-commons-examining-defenses-of-the-nc-and-nd-clauses/
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