[cc-community] using Creative Commons as a fig leave

Paul Keller pk at kl.nl
Mon Jul 6 16:54:05 EDT 2009


hi all, i have just published the text below on my blog at http://www.voyantes.net/blog/?p=382 
  but it probably deserves to get discussed here as well. i am curious  
what people of this list think about the issues raised and if there  
are any suggestions how a platform like Tribe of Noise should behave  
when it comes about informing it's members about licensing their  
rights to the platform.
best, paul

--//-- using cc licenses as a fig leave --//--

i have always had an unspecified strange feeling about Tribe of Noise <www.tribeofnoise.com 
 > . Tribe of Noise is an Amsterdam-based online music platform that  
allows musicians to upload and share their work as long as they agree  
to make it available under a Creative Commons Attribution ShareAlike  
license (CC-BY-SA <creativecommons.org/licenses/by-sa/3.0/>). Simply  
put this license allows everybody to redistribute the songs on the  
platform, make remixes of them and redistribute these remixes under  
the same licensing terms. In all cases credit needs to be given to the  
original artist(s). It explicitly allows for commercial (re)use of the  
licensed works and it is one of the least restrictive Creative Commons  
licenses (and the license that has recently been chosen by a huge  
majority of wikipedia editors to apply to all text on wikipedia  
<creativecommons.org/weblog/entry/15411>). I like this license.

I am writing this (rather long) text because I have come to the  
conclusion that the way Tribe of Noise uses this license is confusing  
to people contributing to the platform and can in the end be harmfull  
for the reputation of the Creative Commons Attribution ShareAlike  
license and the Creative Commons licensing model as a whole.

Even though i have endorsed Tribe of Noise back when it was launched (<www.tribeofnoise.com/news_view.php?ID=19 
 > something i should have never done and which i am obviously  
retracting by writing this) the exclusive choice for the CC-BY-SA  
license made by Tribe of Noise never felt in line with the way the  
Tribe of Noise (TON) chooses to present itself: It is an aggressive  
start-up and the founder (and selfdeclared 'Chief of Noise') Hessel  
van Oorschot aggressively markets it as such. They have been quite  
successful in getting media attention and have known to attract a  
substantial number of artists to their platform (at the time of  
writing there are 5878 members). The platform is promoted to artists  
as a way to get in contact with commercial users of music.

I have met with Hessel on a number of times in the past and among  
others i have invited him to the 'Filesharing: Up or Down?' discussion  
<www.debalie.nl/artikel.jsp?siteid=&articleid=320840> that i organized  
at de Balie in Amsterdam in the wake of the Pirate Bay trail and the  
publication of the Ups and Downs study on the economic impacts of file  
sharing. That evening Hessel explained that one of the components of  
the Tribe of Noise business model is to license (for a fee one  
assumes) the music repertoire posted to Tribe of Noise to video  
hosting services so that they can use it in services like youtube's  
audio-swap <www.youtube.com/audioswap_main> or offer the music to  
video makers that are looking for copyright un-encumbered music tracks  
to use in their videos.

However, such a business model is rather difficult to carry out based  
on the rights granted by the CC-BY-SA license. One of the key features  
of this license is that it requires derivative works of the original  
works to be licensed under the CC-BY-SA license as well (the share  
alike mechanism). This means, that every time a work licensed under a  
BY-SA license is integrated into another work (or the other way  
around) the resulting work needs to be distributed under a the CC-BY- 
SA license as well. If a video maker uses a short snippet of CC-BY-SA  
licensed music in a (long) video that is otherwise completely made by  
herself she needs to release the entire video under the CC-BY-SA  
license or she is in breach of the license (and thus infringing on the  
copyright of the musician in question) [1]. This means that CC-BY-SA  
licensed music is pretty much useless for purposes like sound-swap  
unless the provider of the service intends to force the video makers  
to use a CC-BY-SA license themselves.

Given this Tribe of Noise probably has a hard time selling the  
repertoire uploaded to the platform to video hosting services (at  
least as as long as you assume that they would base these transactions  
on the CC-BY-SA licenses granted by their uploaders [2].

Back in April i did not really notice this contradiction. Tribe of  
Noise came back to my attention two weeks ago when i read about a  
Creative Amsterdam Award they had won at the 'Creative Company  
Conference' <www.creativecompanyconference.com/> in Amsterdam:

> [...] The runner up, Tribe of Noise, was also given an honorary  
> mention for their brilliant concept of music library in which  
> creative commons licence (sic!) could be used for commercial purposes.


The fluffy language in the conference summary triggered my interest.  
What exactly is so brilliant about Tribe of Noise's concept? Given the  
characteristics of the CC-BY-SA license explained above i failed to  
see how there could be a 'brilliant concept of music library in which  
Creative Commons license could be used for commercial licenses'. Sure  
there are three CC licenses that allow for commercial use of the  
licensed works but it is hardly brilliant to allow people to upload  
content to your platform under one of them.

Given the limitations of the Attribution Share Alike license outlined   
above, one is inclined to assume that there are other parts to the  
business model that allow it to function and looking at the terms of  
use of Tribe of Noise it quickly becomes apparent that the business  
model of Tribe of Noise is not based on the rights granted by the  
uploaders via the Creative Commons licenses. Instead it relies on a  
much broader (and much less advertised) non-exclusive license granted   
to Tribe of Noise. Section 9 of the ToN terms of use <www.tribeofnoise.com/terms_of_use.php 
 >, that you have to accept when you open a tribe of noise account  
contains these two sub-clauses:

> 9. Licenses Granted by the User
>
> 9.1 If you upload any content to Tribe of Noise or post any content  
> on the Website, you grant:
>
> * a worldwide, nonexclusive, royalty-free, transferable license  
> (with the right to sublicense) to Tribe of Noise for the use,  
> reproduction, distribution, demonstration, making available to the  
> public and performance of, and creation of derivative works from,  
> that content in relation to the provision of the Services, and  
> otherwise in relation to providing the Website and in relation to  
> Tribe of Noise's business operations, including the promotion and  
> further distribution of all or part of the Website (and works  
> derived from the Website or part thereof), in whatever media-format  
> and through whichever media channel, now known or hereinafter  
> invented;
> * and to every user of your work on the Website the following  
> Creative Commons license: CC 3.0 By - Share Alike.

What is of interest here is the first of these two clauses. It  
essentially grants Tribe of Noise the (non-exclusive) right to do  
whatever they want with the uploaded music. For example they can sell  
(non-exclusive) licenses to third parties without having to pass on  
parts of the revenues generated to the musicians that have uploaded  
the music. Also Tribe of Noise can allow third parties to do whatever  
they please with the music that has been uploaded to the platform  
(without having to require them to give attribution or redistribute  
derivative works under a CC license). In short, by uploading a work to  
Tribe of Noise the artist grants Tribe of Noise a very broad license  
that allows them to commercially exploit the work while not  getting  
any right of compensation in return[3]. In the same section of the  
terms of use the uploaders also grant all users of the Tribe of Noise  
platform the right to use the uploaded works under the Creative  
Commons Attribution ShareAlike license.

This dual license grant is nothing that is specific to Tribe of Noise.  
Almost all web platforms ask more rights in the content uploaded by  
their users than what uploaders  are willing to grant to the general  
public (see for example the terms of use of youtube <www.youtube.com/t/terms 
 > which are very similar to those of ToN). Some services (jamendo  
<pro.jamendo.com/en/>, blip.tvhttp://www.blip.tv>) specifically ask  
for the right to grant commercial licenses to third parties or run ads  
in connection with the content but in return they promise to share the  
revenues generated through such transactions with the uploaders, which  
Tribe of Noise does not do.

Having users agree with terms of service that include such an  
unbalanced license grant can hardly be called a 'brilliant business  
concept' and definitely has noting to do with 'using a Creative  
Commons use for commercial use':  Looking at the Terms of Use of Tribe  
of Noise one has to conclude that using a Creative Commons license has  
nothing to do with subsequent commercial exploitation of the uploaded  
works by Tribe of Noise as the commercial exploitation is enabled by  
the parallel license grant to Tribe of Noise.

Even worse, i get the impression that Tribe of Noise uses the Creative  
Commons licenses in order to hide the fact that they are indeed trying  
to obtain a much wider license grant from the members of the platform.  
Apart from the above quoted section of the Terms of Use there is no  
mention of the additional license grant to Tribe of Noise on their  
website. Certainly not in the FAQ <www.tribeofnoise.com/faq.php> or  
the more info movie <www.tribeofnoise.com/popup-make.php> aimed at  
musicians (the two places where one would expect to find information  
about what rights are granted by simply uploading a work). Instead, in  
the video with more information for artists, Hessel van Oorschot  
states that they have solved a ‘legal challenge of sharing music with  
companies’ by using the CC-BY-SA license[4]:

> [...] sharing music with other musicians and companies around the  
> globe and getting more attention that is a legal challenge. But we  
> came up with a solution so let me know how it is done on tribe of  
> noise: Sharing music online even for commercial purposes is legal!!  
> with help from legal advisors laywers (sic!) and creative commons!!  
> Creative Commons Attribution Share Alike 3.0 Unported[5].


Of course Tribe of Noise is free to ask their users for whatever  
license grants they want (and one could imagine that some artists do  
not object to give away the right to commercial use in exchange for  
exposure of their work on Tribe of Noise). However one would assume  
that a site that states 'Tribe of Noise means music and respect!' <www.tribeofnoise.com/user_guide.php 
 > openly informs its uploaders what rights they are granting to the  
platform in exchange for being allowed to upload a work to the  
platform. Hiding such information in the legalese of the Terms of  
Service does not really show respect for the musicians using the  
platform.

First of all this is objectionable because it relies on the lame old  
trick of hiding stuff in the Terms of Use that one has to click though  
during a registration process and then using a CC licenses in order to  
imply that the site does respect everybody's rights. However, the  
conduct of Tribe of Noise is also objectionable on a more profound  
level as it shows that the team behind Tribe of Noise apparently  
thinks that it is ok for them to make commercial deals with works  
authored and performed by other people without reimbursing them for  
such uses. While writing this i have asked Hessel van Oorschot if  
Tribe of Noise has a revenue sharing model in place and he has  
responded that they will certainly start working on a honest sharing  
mechanism. If such a revenue sharing mechanism gets introduced to the  
platform in the future that is certainly a step in the right direction  
but it does not aliveate my other point that Tribe of Noise is far  
from transparent when it comes to dealing with the copyrights of the  
members of the platform.

--//-- footnotes --//--

[1] The cc licenses are quite specific about the use of music in  
combination with moving images. in section one of the licenses syncing  
of sound to moving image is explicitly defined to constitute a  
derivative work (and thus a trigger for the ShareAlike condition):  
'[...] For the avoidance of doubt, where the Work is a musical work,  
performance or phonogram, the synchronization of the Work in timed- 
relation with a moving image ("synching") will be considered an  
Adaptation for the purpose of this License.'

[2] Note that Tribe of Noise cannot sell licenses based on the CC-BY- 
SA license grant as none of the CC licenses allows for sublicensing.  
In theory ToN could be paid for curating, providing or making  
searchable of the content on the site but not for the CC license itself.

[3] This license grant ceases to exist once an uploader terminates the  
relationship with Tribe of Noise (by cancelling his account). However  
section 12 of the Terms of use ensure that licenses granted by Tribe  
of Noise to third parties remain valid after the termination.

[4] Transcription of the video at www.tribeofnoise.com/popup-make.php  
from 00:54 to 01:16

[5] And apparently that is how they pitch their service to clueless  
juries <www.ccaa.nl/page/20734/en> at Creative Company Conferences and  
similar events


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