Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

Gary (AUDN) wrote:

> Greg, to pick up on your comment:
>  
[...]

> Your other comment:
> "Really, if a song is CC-BY-NC, has contact info, and a radio station wants
> to play it, I don't think the license is a gating factor."
>
> Sorry I couldn't disagree more. This is the exact problem.
> If I wanted to start an internet radio station and sell advertising to keep
> it going, then I *can not* use CC-BY-NC tracks as it is a commercial
> venture. Full stop, that's what it says on the tin. 
> Yes I can contact each artist in turn and ask them permission, but hey this
> is the exact reason we have pre-defined licenses so we don't need to do
> this. If I can use CC-BY-NC, then it's a case of redefining this license to
> make it crystal clear.
I think Greg's point is that, regardless of the size of the company,
this is unquestionably "commercial use" -- you plan to make money
off of the venture. So why shouldn't the artist?

The reason the artist wants you to contact them before using a
CC-By-NC work is exactly the same as why someone would who's
used "All Rights Reserved" --  they want you to negotiate a fee.

Your arguments about "small business" and "not a lot of profit",
etc are not properly arguments for eliminating the license -- they
are arguments for getting access to the work for *less money*.

Which is probably sound -- ask the artist, explain your situation,
it's very likely they won't be outrageously expensive.  And that
might be fine for your "podcast" situation.

Also, I do notice that you describe the desired use of the work
as something embedded in a larger work -- i.e. that the work which
is actually being used as a revenue source is either a "derivative
work" or a "combined work".

That suggests that you're interested in a license that is precisely
opposite from CC-By-ND -- it ONLY restricts ND work from commercial
use, but allows derivatives to be used commercially (but how different
is different enough?  If I change one word, or transcode the audio,
does that make it a derivative?).

> .  because tracks released under this license can be used for
> any commercial venture, direct sales, TV advertising etc. Do you know how
> much brands pay for music licensing for TV adverts etc? This is a world away
> from Joe Bloggs wanting to start an internet radio station or podcast with
> adverts.
This sounds totally ad hoc to me.  The "TV advertising" is basically
identical in form to the "podcast" -- a derivative work or combined
work embedding the original. I'm pretty sure that CC-By-ND could
be expected to block either use!  (The definition of "derivative work"
is unfortunately rather poorly defined, just like "non-commercial" --
this is in fact one of the stickiest problems with the GPL, and the
language in GPLv3 is partly about changing the meaning of it!).

Now, I know what you're thinking -- the "TV ad" is strictly an 
advertisement,
while the "podcast" is the "content" which draws people to the site,
which then has ads.  But it'd be awfully hard to draw a distinction.
Back in the 1950s when TV shows usually had one sponsor, could you
honestly say that the whole show wasn't really an advertisement for
the product (and if you could, could you express this in legally-
unambiguous terms)?  Even if a dozen different ads for different
products, does that really change anything?

Would you then conclude that a "TV ad" that used the same music to
sell *two* products was "content"?  Where do we draw the line?

One of the great failures of our civilization's concept of 'Law', is that
it is impossible to codify 'fuzzy rules'.  Something is either 'legal' or
'illegal', there is no formal status for 'shady'.  We all know that the
'gray areas' are very valuable in real life, but we can't really do much
about that in the law -- it's far too blunt an instrument.  When you do
try to create a 'fuzzy' distinction in the law, you fail -- what you create
instead is 'uncertainty' (BTW, one of the most common misconceptions
of 'fuzzy logic' is to conflate it with 'uncertain (Bayesian) logic' -- they
are actually completely different things!).  Historically, we've made up
for this by using lax enforcement ('it's technically illegal, but you can
get away with it because it doesn't hurt anybody').  But the digital
age has made enforcement easier, and a paranoid content industry is
currently on a rampage to eliminate any cracks they can find -- so the
situation has become 'pressurized'.

This is one area where *markets* really shine compared to law: they
allow judgements to be determined on the basis of a numerical cost.
Instead of things simply being 'allowed' or 'disallowed', they are 'allowed
at cost X' -- and that's why markets come much closer to robust, linear
behavior than any form of law, and one reason why centrally-planned
economies have so-often proven to be such a disaster.

The 'libertarian ethic' (which underscores much of the ideas behind
free-licensing and free culture) is that the law, when used, should skirt
the boundaries of the market, leaving plenty of room for that linear
system to function, while cutting off dangerous singularities due to
irreversible processes and natural non-linearity (e.g. violent crime,
theft, poverty/debt-slavery).  This will have some bad consequences,
but as Thomas Jefferson argued, it's better to live with the faults
of being too free than with the faults of not being free enough.

The copyleft licenses use the law to *create a marketplace of ideas*
by eliminating the loss-mechanism of free-loaders taking the work
private and by *not constraining* the use of the work.  This has been
really successful. But it makes it hard to recover development costs
over the life of a work -- except in those cases where the development
leverage of free collaboration represents a significant payback in itself
(and this applies to nearly all software, but very little art).

What would really make your podcaster's life easier is if the work
charged a fixed percentage royalty that you could work out for yourself,
and told you where to send the money.  This would essentially be a
pre-prepared commercial license in addition to the By-NC.  In fact,
it's awfully like "Shareware".

This is all driving me towards recommending a paper on free/
semi-free licensing and economics published late last year:

"Innovation Through Optimal Licensing in Free Markets and Free Software"
Geoffrey Parker and Marshall Van Alstyne
http://ssrn.com/abstract=639165

I think the ideas in this paper really should be of great interest
to the Creative Commons -- their idea involves a license with
numerical parameters that determine whether royalties need
to be paid and for how long. It incorporates many of the CC ideas
such as ND, NC, copyleft/SA, and "Founder's Copyright".  The
cool idea is to have one license with parameters rather than
a "modular" license.

The downside of course is that they aren't lawyers and they
don't really explain how to create such a license legally -- but
personally, I think it's possible (of course, I'm not a lawyer either).

I had a brief e-mail exchange with Van Alstyne about the paper,
so I know that he would be interested in seeing his work used
by CC and like-minded folks.  I'm not sure that he specifically
addressed the problem in this case -- but the idea that royalty
payment can be computed from the license itself sounds like
a powerful method for resolving cases like yours: it would remove
uncertainty, reduce the search burden on you, and yet it would
remunerate the artist.

Cheers,
Terry

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