[cc-licenses] Founders as a module? was Re: Getting to Version 3.0

Terry Hancock hancock at anansispaceworks.com
Tue May 23 22:48:59 EDT 2006


rob at robmyers.org wrote:
>  Quoting Greg London <email at greglondon.com>:
> > I think Rob's point was a scenario where Alice chooses to use
> > Founder's with an N year delay to public domain release, and at
> > N-1, Alice freaks and wants to keep her work under the original,
> > more restrictive, license. So, she willingly choose it at the
> > start, but before the release period was up, she changed her mind
> > and wants to revoke it.
> >
> > I don't have much sympathy for Alice in this situation, but I could
> > see an uneducated media hyping it all out of whack about how CC is
> > "stealing" someone's work.
>
>  Yup. There's also malice as well as ignorance, it would be a gift to
>  various organisations that are pathologically opposed to any form of
>  CC licensing.

IMHO letting people who are pathologically-opposed to your
agenda set the rules by which you work, is asking for
failure.

My concept here is to create something that creates harmony
between "NC-based + commercial distribution" models and
"free-license community distribution" models of business.  The
latter is very good at building up goodwill and creating massively
collaborative collective works. But it's not so good at actual
monetization of income.

It's a wonderful thing to be paid in potentials for potentials --
"aleph money" -- but at some point a professional artist will want
to trade some potentials for tangibles: artists have to eat, need
shelter, etc.  Copyleft creates a beautiful information-exchange
economy, but it creates an effective wall against exchanging
for material goods. It makes it really hard to "sing for your
supper".

There are people who think that's how it should be -- that the
"information-for-matter economy" is fundamentally immoral (or
pathological, or undesireable for whatever reason). But I'm not
one of them -- I believe "artists should be paid for their work".
Or at least, "artists should retain the right to be paid for all, most,
or some of their work, for limited times, under reasonably limited
conditions, that don't poison the processes of art and innovation
themselves".

So, in the end, I'm sympathetic to the desire of artists for a
"non-commercial" option that allows them a monopoly on making
money from their work.

However, the existing CC "NC" module is fundamentally incompatible
with free-licensing and the networks that are used to convey
free-licensed works. Those networks are very powerful, precisely
because of the success of copyleft for the "useful arts" of software,
documentation, and design literature.  So, IMHO, artists would
benefit from something that allows them to cooperate with those
systems.

Even more importantly, however, artists would not lose the collaborative
leverage of copyleft communities if their work were freely combinable
with copyleft works.  The existing NC module blocks this advantage,
and it does so perpetually, creating a walled-off "NC commons" which,
in terms of collaborative leverage is fundamentally crippled -- it provides
no means to pay for the processes that create the illusion of friction-free
collaboration.  Things like advertising-supported or commercially-sponsored
distribution sites.

AFAICT, *any* "NC" model will create *drag* on any work going into that
community.  But, in principle, it might be reasonable to allow such drag
in exchange for monetizing the artists' output.

Because of this drag, there will always be a desire to reap the immediate
benefits of a free-license community by releasing straight to CC-By or
CC-By-SA.  With the changes expected in version 3.0, those works will 
definitely
be considered "free" and "compatible" with the existing commons.

The *currently implemented* CC "NC" module, however, does more than merely
create "drag" -- it *fully isolates* the "NC commons". I'm not the first 
person
to note this (as you well know).  But how to solve it?

The original US copyright system solved this problem by limiting the term
of copyrights.  This has gone sour because of "effectively unlimited"
copyright terms.

However -- just as we can circle the wagons and redefine what "fair use"
ought to mean by creating CC licenses that allow "fairer use" than what
the law provides, we can create licenses that allow "more limited times".
And we can combine the two concepts -- we can let works evolve from
"most commercially viable" to "most community shareable" to "fully public
domain" -- over time.  Time gives us an extra axis to play with, and
therefore an extra means of optimizing licenses.

Forget the term "founder's copyright".  Lessig says in his blog (cited in
this thread) that there've only been *three works* using it.  Also, 
"founders"
isn't a license at all -- it's a copyright sale under contract.  And that
does create a questionable arrangement, IMHO -- one about which some
fair criticisms can be made.  On reflection, I think the existing Founder's
is ill-conceived -- and that's enough to explain its lack of success.

But there's a nugget of a good idea there: use term limitations to allow
a work to become freer over time.  That means that, while the NC module
means the work is in an isolated commons, the term limit means it won't
stay there (not forever, and not "effectively forever", like waiting for it
to enter the public domain).  So, while a term-limit non-commercial
commons would be "forked" from the free-commons, it wouldn't be
"fully disjoint": as you follow the flow of information downstream, they
merge at some well-defined point in the future.  The delay creates a
reduced, but not non-existent, interest for the members of the
free-commons.

That turns a wall into a slope, and provides a means of compromise.

Of course, people who opt for a perpetual NC clause would get to keep
their gated-off commons. If a time-limit were implemented as a module,
it would remain the artists' choice whether to use it or not.

But people who want to do more than lip-service to the idea of a
free-commons can license their works so that they will enter it in time,
without having to give up on a well-understood and comfortable
business model.

They'd retain the present incentive to pay for the work, support existing
paying distribution channels, and protect the artists' income through
those channels.  But they'd simultaneously increase the value of their
work to the end audience -- who would know that the work will in time
become useful material as well as a desireable aesthetic experience
in itself.

The NC licensing scheme is the most popular CC license -- and while
I think that's evidence that artists don't fully appreciate the limits it
is placing on them, I also think it indicates that the artists are not
prepared to take the risk on unproven and largely untried business
models proposed for fully free-licensed aesthetic works.

So far, I can't fault them for that -- it looks like a bad risk to me: The
counter-examples that have been raised (e.g. "Wikipedia") are
"successes" at creating content, but they are not "successes" in the
sense of paying the contributors.  Now, I acknowledge that this
empowerment of amateur creative work is desirable, but do we
really want to destroy the niche of the "professional artist"?

I don't think that's a wise course of action for society.  There are
especially talented people whose time shouldn't be wasted on a
"day job" -- people who should be paid to create full time.  (IMHO).
Those people need a system that allows the monetization of
their work -- because as much as I would like it to be otherwise, you
can't live on goodwill and collaboration alone, no matter how
much of it you get.

Cheers,
Terry

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





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