[cc-community] Intellectual Highway Department

Terry Hancock hancock at anansispaceworks.com
Tue May 30 13:46:33 EDT 2006


Greg London wrote:
>  So, some people think that charging tolls is fundamentally evil. That
>  anyone who does the work to create a new piece of highway should
>  allow anyone to travel on that road freely. Some of these folks claim
>  that gift economy approaches can build any road, that all you got to
>  do is get everyone to adopt copyleft and highways will spool out
>  beneath your feet.
>
>  Then they point to Linux and Wikipedia as proof that *anything* can
>  be built by floss construction techniques. But what they fail to
>  admit is that linux and wikipedia worked because of the terrain it
>  was built on, not because of some magic powers of the gift economy.
>  If gift economies can do *anything* given enough time, then Linux
>  should have been able to succeed even if it had used the BSD license
>  from the very beginning.

I am seriously disturbed by your continued (intentional?) conflation
of 'free license techniques' and 'gift economy'. Right here you rightly
point out that Linux succeeded over BSD Unix because of the nature
of copyleft licenses: proof that copyleft communities are not mere
'gift economies'.  If that's not proof that copyleft != gift economy,
I don't know what is.

Besides, wasn't it just *you* who was trying to convince me of this?

Something along the lines of 'Stop trying to add new licenses, because
your choices are NC and SA, and if it doesn't fit SA then you just need
to come up with a new way to "chunk" the project' so that it will.

>  So, when these same people see that the construction techniques
>  aren't working in new terrain, when they try to build a floss road
>  into the music world, they don't see the that they've just pushed
>  into a mountain range and the same construction techniques may not
>  work here.

Yet, your answer to this is that we should keep using the same techniques,
but just 'try harder'?  *What* is your point, actually?

>  So, any road built before 1928 is part of teh commons.

"Works created before 1928" defines a fixed commons, so your
metaphor breaks down.  We're back to the fenced off pasture.

The error here is thinking that (in defiance of existing history), the
"limited times" concept will be honored.  In the US (and US policy
tends to have an inordinate influence on world IP policy, so this is
not just a US issue), Congress has caved repeatedly to entertainment
industry lobbying to the point that it has made a mockery of the
idea of "copyrights for limited times".

The present 80 years (IIRC) is far, far too long to be useful, and it's
unlikely that even that limit will stick (after all, the longer it gets,
the easier it is to push it further -- it's already effectively forever).

>  Any road built by a gift-economy project is either part of the
>  commons or part of the gift economy, depending on which license they
>  use.
>
>  And any newly built road that charges a toll does not affect the
>  existing roads that can be traveled for free.

Total metaphor breakdown here.  You're redefining or misusing
'commons', 'gift economy', and 'toll' in ways that make it impossible
to decipher.

A 'commons' is material that can be meaningfully shared and
"remixed", to use the CC expression.  Regrettably, there is more
than one of these now.  Hence the complaint of "commons fragmentation".

Charging a 'toll' is a total irrelevance. A toll can be charged for
any of these licenses, or not charged.  I suppose you mean a
license fee as such.

But the real point is that you are kidding yourself if you continue to
believe that a system which encourages toll roads has no impact on
the creation of free roads.  I grant you that it is not a true zero-sum
game -- but there is a definite question of mindshare among artists.
More artists using one license or another means a preference for
the commons they select.

When we speak of 'fragmentation' of the commons we are referring
to the fact that multiple bodies of material under different, incompatible
licenses, makes combination impossible.  This of course, is based on
the idea that if there were one agreed-upon license, that all the
material would be released under it. This is not totally true, of course,
but neither is the converse idea that each license communities is so
attached to their terms that they would only choose their license or
no license.  I seriously doubt that for the simple reason that people
choose commons licensing specifically to support some kind of
sharing community. 

What mystifies me is your opposition to voluntary options to smooth
the boundaries between commonses.  Even if it fails to have the
effect I want, how can it possibly hurt you?

Why does an artist choose NC at all? For most purposes -- especially
to other artists -- the NC offers nothing of value.  Unless you're a
communist, this is no help at all: 'I can use your work, so long as I
can prove that I didn't gain any financial value from it.'

Now *that* is a 'gift economy'.

The problem is that the artist trying out this new "CC-By-NC-SA"
concept is (IMHO) trying to get the benefits of the commons, but the NC
creates a poor commons.  It impedes sharing and cooperation, because
it messes with the underpinnings of the mechanisms that surround
copyleft and free-license communities.

IOW, the person using NC is trying to foster a community, but is
being guided (wrongly, IMHO) towards the NC model.  That happens
largely because of CC's framing of the licensing issues and the
choice to provide "NC" and "SA" licensing options.

Now why does that happen?

You answer this yourself ...

>  So, there is a meme that is pretty common in the gift economies that
>  to charge tolls is wrong. But when the gift highway department
>  ventures into the mountains and finds their construction techniques
>  aren't working as well as they did in flat terrain, they stick to the
>  idea that "tolls are evil" but realize they need money to continue.
>  So they try Street Performer Protocols. They build a road and then
>  request donations rather than demand tolls. And they ignore that
>  their Pasture metaphor no longer works. It isn't simply a matter of
>  setting up a new fence and charging admission. It takes *work* to
>  build a new road and you either figure out a way to do it for free or
>  you have to figure out a way to pay for working on it full time.
>
>  Some on the intellectual highway department decided that the way to
>  go is to build the road, not charge tolls, but to also build a gas
>  station and restarurant and make money that way. Then they'll argue
>  that everyone should do it that way, because, well, tolls are evil.
>
>  At some point, this descends into complete stupidity, a refusal to
>  look at reality.
>
>  Tolls aren't evil. Tolls that last too long are evil. But the idea
>  that it's evil to make a living building roads and charging tolls but
>  it's OK to make a living building roads and making money selling gas,
>  is silly.

So we agree, that sometimes, the right thing to do is to charge a fee
for licensing, and prevent certain kinds of use (which the artist would
prefer to charge a toll on).  The artist wants to find a way to protect
this income, but he also wants 'commons' leverage (if he didn't he's
going to use 'all rights reserved', so he's outside the CC space).

But here's the problem: ANY system that does this can't be mixed
with a true copyleft commons.  So, you lose a *lot* of the benefit of
having a commons.

I propose a means to solve this.  It's based on the precedent of the
original US copyright law: "limited times".  Provide an option to
voluntarily expire the NC limitations (and ND, actually, but this
is a minor point -- its primary use case being to allow a choice of
expiration to CC-By-SA or CC-By -- another matter of artists'
choice).

In fact, many toll roads -- perhaps most -- also have limited times. They
eventually become free roads.  It wouldn't be at all unusual, in fact,
for a contractor to enter into an agreement (with, e.g. the state highway
department), to stop charging tolls and turn over the highway to the
public after either 1) a proprietary period has elapsed or 2) a certain
amount of money has been raised.

The public, may, of course, offer some boon for agreeing to this. For
example, the right to use the public land over which the toll road is
built.

In our case, the copyleft community may consent to a greater degree
of support (e.g. listing and indexing of material, recommendations,
etc).

What makes that possible? What holds the contractor to their word?
A contract, of course.  A written statement that they are bound to
under law that says "After condition A is met, the road will be free".
Fortunately, in our case, you only need a post-dated 'license' to make
this arrangement explicit.

>  Britannica can build a road for an encyclopedia and charge a toll for
>  anyoen who travels on it. Wikipedia can build a road for an
>  encyclopedia, let anyone travel it for free, and then ask for
>  donations to pay for it.
>
>  Britannica's road does not stop wikipedia.
>
>  And someone who builds a road and licenses it CC-NC allowing people
>  to travel it freely but charging tolls for vehicles with commercial
>  plates is NOT fragmenting anything.

This is basically a plea for the artist to have freedom to choose what
licensing model he wants.  On this, we agree.

OTOH, there is the question of what licensing methods are *promoted*.

You yourself rely heavily on the idea of 'limited times' to justify
the NC (and proprietary, for that matter) systems.  Specifically,
you cite this as a reason these system enrich the public domain.

However, legal history suggests this is fairy gold.  Hence I suggest
replacing what should be there already: implement "limited times"
in the license.

I propose to do this with a module. It's not like any artist would be
obligated to choose it.  I *do* want to promote the idea, though, because
I think it would give the artist more of what they want sooner.  I
*know* it would give *other* artists more of what they want sooner.

Because of that, it would be fundamentally *enabling* to projects
that wanted to use this kind of business model.

You've pointed out that projects could implement that without
CC help. Well, sure we could -- but what kind of argument is that?
The same can be said about all license issues.  CC support just makes it
a lot easier to do -- because CC has worked out the details. And of
course, it promotes the ideas.  That would be very useful in reducing
the number of people who might choose NC, hoping for copyleft benefits,
and then being disappointed by the results (which might drive those
people to reject the commons idea entirely).

One thing such a project would have to fight is an uphill battle against
FUD and the educational gap in explaining the license.  But that's
precisely what CC's role has been in the past: CC develops and promotes
licenses (and hence, the strategies they enable).

Now you make the point that there are artists who wouldn't want the
NC terms to expire, who fully understand the consequences of them, and
who would otherwise just use "all rights reserved".  Fine.  Let them choose
that, after seeing a better range of alternatives.  I have no problem with
that.

But you insist that they shouldn't even have the choice -- "it's our way or
the highway", you suggest: either follow the SA route or the NC route. No
compromises.  Now, of course, if we were talking about changing the
meaning of "NC", there'd be a good reason for that -- each variation would
create a new commons, and thus more works that can't be used together.

So I don't propose that. I propose expiration, so that works move 
automatically
from NC to SA at a time of the artist's choosing (I do propose 
relatively coarse
granularity to make things simpler: 1, 3, 7, 14 yrs for example, but 
this is a
minor point -- different expiration periods should have no effect on 
compatibility).

Summarizing our positions so far:
You say 'too bad, he can't have his cake and eat it too'. I say, 'let 
him have
his cake for awhile, and then eat it'.

Cheers,
Terry

-- 
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com




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