[cc-licenses] Alex Bosworth: "Creative Commons Is Broken"

Terry Hancock hancock at anansispaceworks.com
Tue Mar 7 15:02:25 EST 2006

On Monday 06 March 2006 05:28 pm, drew Roberts wrote:
> I am a big fan of Free Software. I am involved in CC directly as a result of 
> my involvement with Free Software. I release my works BY-SA as a result of my 
> involvement with Free Software. So, when I get thinking along these lines, I 
> often think that it would be a good idea for the LUG to promote CC stuff as 
> well. So, The LUG would provide a machine which the store would host and 
> power. The stores "customers" would be able to come in and use the machine to 
> see how they could use Free Software in making music. They could also got CC 
> content to play with at the same time. Sounds like a win-win all around. (I 
> may still do it for BY and BY-SA stuff.) Then I start following all the 
> different ideas people have re the NC issue. Then one day I remember that 
> since my grandfather died that I have a very minor interest in the store. 
> (Would that make a difference?) OK, so, if I had no shares in the store, 
> would it be OK for them to make CC NC works available to people at no charge? 
> I don't know. I do have shares, if it was OK, is it now not? If not, I can 
> perhaps get another furniture store or music store to be the host. OK, what 
> of a LUG trying to get a publicly traded corporation to agree to the same 
> deal? Would ti fail if any member of hte LUG held shares in the company or 
> any related company? It is just too much for my brain. If I ever see it 
> explained clearly, I may reconsider.

Bravo. I think your example needles the real issue here.

The problem is that the only reason for releasing a work is that it is
"profitable" to the "public". I.e. it is a "public benefit".

In fact, for the rest of this, notice that it doesn't matter whether
we substitute "benefit" for "profit", because a "benefit" can ALWAYS
be turned into a "profit", by direct or indirect means. I "profit" by
my education, for example, because it allows me to do profitable work.
I "profit" by a nice song I heard on the radio, because it contributes
to the good mood I need to write a program today. And so on.  The

Therefore, EVERYONE "profits" from its use (at least potentially). In
reality, this isn't totally true -- some people won't use it, notice it,
etc. But in *principle* they can benefit from it.  This DOES HAVE SOME
COST (e.g. you must have a computer and an internet connection, or you
have to pay for media, or...).  As a result, even a completely public
domain work has some price barrier, and hence there are people with
"privileged" access to the "profit" from the work.

The idea of "exclusively profitting" only makes sense if you are a single
individual, operating a for-profit, SELLING individual copies of the
work for money.  This is "unambiguously commercial use".

Any other use is in the gray area.

The question all these elaborate use cases are trying to resolve, is
"How much privileged access to profits from the work am I entitled
to get based on the 'public value' of the work before I must be
considered to be using the work commercially".

There is no clear-cut answer to that question.  None.  You can either
express it numerically (in which case it'd be a bear to prove, and 
totally unenforceable), or you have to write enormously complex
"usage guidelines". Such guidelines can never be general enough to
cover all sorts of work or uses.  You'll be in a constant battle to
decide what is and is not "commercial use".

That means handling it in the courts (extremely high "transaction cost",
hence no one wants to re-use the work), or establishing a permissions
body (merely very high "transaction cost", and still, no one wants to
re-use the work), or relying on the honor system (low transaction cost,
but it gets abused due to differences of opinion -- ultimately it 
becomes meaningless).

Which for me at least, is why NC just sucks.  Don't use it!

But I think it does re-frame the problem a little bit.

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

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