Development of Creative Commons licenses

[James Grimmelmann <james.grimmelmann AT yale.edu>]

At 02:34 AM 8/17/2004, Rob Myers wrote:

> Lifting all constraints does not ensure freedom. That's why WINE 
> relicensed and why Microsoft are so happy with the BSD license they got 
> their TCP stack under.

Yochai Benkler describes this situation with the phrase 
"appropriation."  The absence of certain kinds of property protections 
means that some private actors can come in and effectively reconvert to 
privately-held something that use to be a common resource.  Appropriation 
undercuts the value of the free access that people enjoy to the 
resource.  In terms of "freedom," something that is formally too free and 
open can, in practice, become less free because of appropriation.  (The 
desire to prevent appropriation is a strong motivation behind the copyleft 
provisions in the GPL.)

Why this definition?

> Boxing off commercial exploitation with the holy badge of NC takes nothing 
> back from the commercial entities that will profit from the creation and 
> distribution of the work regardless.
>
> So IMHO :
> 1. NC stops anyone who uses the work from making money off of it.
> 2. The internet service providers, software and hardware companies, 
> internet hosts and print shops that are involved in the creation of the 
> work still make money off of it.
> 3. The warm glow of anti-capitalist virtue people get from NC is therefore 
> self-defreating. They are giving money to commercial interests without 
> taking anything back from them.

. . . because NonCommercial is also a form of anti-appropriation 
provision.  The theory behind a significant number of NonCommercial uses is 
that one wants to keep companies from appropriating the work from the 
commons.  There are cases in which it may not be as effective an 
anti-appropriation provision as ShareAlike might be, but in many cases it 
will be effective enough.

This kind of motivation for NonCommercial licensing has, significantly, 
fairly little to do with hostility to companies in general: it shares 
something of the GPL's spirit that profit-making which enhances the commons 
rather than diminishing it is totally fine.  It just stakes out a different 
view of which borderline between "enhance" and "diminish" it will try to 
police.

And further, that anti-capitalist glow can be a surprisingly subtle thing 
to pin down.  Plenty of artists, for example, have warm and fuzzy feelings 
towards ISPs, technology makers, and print shops, but hate media 
corporations with an anger born of long frustration and the 
painfully-acquired knowledge of evil.

There may also be people who want to wield NonCommercial as a weapon 
against companies in general, but simply don't understand the indirect 
support for platform and infrastructure companies that a vibrant media 
commons provides.  But I'd rather not say that everyone who uses a 
NonCommercial license -- including myself, Cory Doctorow, and Professor 
Lessig -- is morally confused.

> >Free Software in guided missiles, is that Freedom?
>
> Yes. :-( It is freedom for software. Ensuring that one is free to object 
> to the missile's use, or that one is free from being on the receiving end 
> of it, are different freedoms.

Very true.  And the freedom to hit implies the corresponding lack of a 
freedom from being hit.  (In Hohfeldian language, for the law geeks, every 
power implies a corresponding liability.)

James