Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

drew Roberts wrote:
>  On Tuesday 23 May 2006 10:48 pm, Terry Hancock wrote:
> > 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.
>  Do you have proof of this latter contention. (See later discussion.)

The null hypothesis is always harder to 'prove'.

I have noted a lack of evidence of successful proofs-of-principle of
strong models of copyleft-art monetization.

By "strong models", I mean models that operate in isolation.  We still
have the "free sample" model which is a variation on the "signaling"
strategy of software developers -- 'do a good enough job on a free
project, get paid for producing non-free ones'.

I understand that you have a vested interest in finding successful
copyleft-based business models for art.  So do I, for that matter, and
I find it interesting.  However, after considering the problem as long
as I have, I haven't found any magic methods to do that. There are a
variety of interesting edge cases and weak models.  But so far, no
break-out ideas that you can run with.

So, while I don't think we should give up on exploring those options,
I think there will continue to be a strong incentive to use NC models.

So long as that's going to be the case, I'd like to advocate NC models
that are easier to live with.  A time-released NC model is one such
strategy.

>  An artist can insist on being
>  paid every time they "sing" and still release all of their work as
>  copyleft.

Service model. The artist gets paid for their time performing.

>  Income streams that don't go away when your creative works are
>  copyleft...
>
>  Gig and concert for musicians. (Plus endorsements, action figures
>  (had to put that in for fun) and merchandise and the like.

Same: service model.

> Personal
>  appearances. Dual licensing. Let's let our imaginations soar for a
>  bit...

Endorsements. Yeah, that works for sports stars, even if they are
in amateur competition (e.g. Olympics). But it's pretty thin air --
there's not a lot of people who can make money this way.

>  For painters, they can still sell their originals. They can also
>  still sell numbered and signed prints. As a matter of fact, couldn't
>  they reserve their signature as a part of a trademark and not allow
>  free use of that (sort of like what Red Hat does with their
>  trademarks?)

True, of course.

Every one of these is pretty marginal as a business plan, though.
They make a lot less money than direct sale of copies of a work, and
when they do work well, they do so by promoting the values of
patrons (corporations, for the most part, but also rich individuals),
and so are not exactly populist solutions.

IOW, they would promote artistic works that favor upper class values.

(Not that upper class values shouldn't be represented, but my
point is that biases are introduced because of the model)

>  I, however, (want to?) write lyrics. That is a bit tougher to figure
>  out, but I have not given up yet.

Nothing is springing to mind.  But I don't think you should give
up, either.

> > 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.
>
>  I too am sympathetic to the desire. I just think it is not going to
>  do much for them or for anyone in the long run.

The thing is, copyright monopoly rules undeniably *have*
benefited creative works during the time they have been in
force. There are many, many writers, musicians, singers, artists,
and illustrators who are gainfully employed because of the ability
to excercise monopoly control over the sales of copies of their
work -- the "masquerade of information as matter".  So it's pretty
hard for me to scoff at this model: it's a proven reality.

IMHO, much of the criticism of this system is not in the principles
behind it, but in a deep conviction that the principles have been
applied wrongly.  Instead of being optimized to promote creativity
and innovation for the ultimate enrichment of the public domain,
it has become another corporate welfare program.  Today, to
make matters worse, it's tangled up with international treaties
and trade organizations making it harder to change for the public
good, and increasingly dominated by big money.  Thus the copyright
system, as enshrined in law, is broken, and unfixable. Fixing it
would take a revolution at this point.

What CC is doing is effectively reinventing the copyright regime
for a limited community.  Primarily, as I said, this has taken the
form of broader interpretations of "fair use" -- allowing greater
access to a work while the limitations apply.  But it could also take
on the concept of "limited times", allowing greater access to occur
sooner so that the "public domain" (actually the free-licensed commons,
which is conceptually the same, but legally distinct) is enriched
sooner.

As such, I would argue that the benefits of a time-release are similar
to those gained by sharealike licenses.  But they work for different
business models, which may incorporated better, more optimized
coverage of artists' endeavors.  Both aspects are meant to be means
of restoring the original balances of copyright law.  Convincing artists
of the value to them of these balances is tricky, but that's precisely what
CC's mission is (as I understand it).

> > 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.
>
>  Agreed and ALSO allows them to cooperate WITH EACH OTHER with minimum
>  friction.

Yes, well, artists have access to the commons, so they're in the commons
community, whether they realize it or not.  This is the #1 reason why
artists should promote commons-friendly developments.

> > 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.
>
>  Even if we adopted what we are talking about, NC would block these
>  while it was in force.

Yes, but ...

I would donate server space to a work that was NC-time-released on
a reasonable time scale, whereas perpetual NC need not apply to
any project I'm working on.

Ultimately it's a compromise -- any NC regime is going to be a second-
class citizen on my projects, while true free-licensed work will get
first-class treatment.  But that's kind of a tit-for-tat: part of the reason
for this is that the free-licensed work not only needs the help more,
but it allows me to make a profit off of the server and distribution
investments I'd be making.

(Not saying I have a working business plan for this -- I'm speaking
hypothetically -- but it would work in principle, and there are extent
examples of such networks).

I view NC works not only as irrelevant to
free development, but actually somewhat toxic to it, because they
encourage resources to be sapped away from the commons. It's a
"poisoned honey pot".  I think my reaction to this is the reason for
the bile directed at the NC licenses in particular, and CC itself as
an indirect target.  What I'm talking about here is precisely the reason
that Stallman has spoken out against CC -- it threatens his mindshare
over what is a "free" work with an alternative that he feels doesn't
work, but may convince people that it does long enough to damage
his cause.

> What it would not block fully like it does now
>  is the interest and promotion that can come from people who are out
>  to promote Free Works.

Bingo.

> > 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.
>
>  Like I have been saying, I am certainly willing to explore
>  compromises that don't kill my actual goals.

Me too, and that's all I'm really saying here:  I want to suggest that
CC offer something that does what the artists currently choosing
NC are looking for, but in a way that doesn't raise such hostility
from my own camp.  I'd like to see CC promote an NC clause that
people like me feel we can live with.

What Rob asks is valid, though:

'Would a "Sunset NC" be able to compete with "Perpetual NC"?'

And my answer is:

Maybe.  With a dedicated effort by free-licensing advocates who
have a strong appreciation of the dynamics and benefits of free
licensing, the case can be made for the value proposition of a
"Sunset NC" to artists.

To do this without the CC's help would be really hard.  To do it
with an existing CC module supplying the legal code, the
marketing for the module, and the compatibility with existing CC
licensing, it might be pretty easy.

I'd like to see this case made to artists, but without the infrastructure
in place, I can't see it happening.

OTOH, for CC to add this module is almost trivial -- as Mike Linksvayer
pointed out, it's a relatively simple piece of text which could in principle
be in a license grant.  IMHO, if that's so, then it should also be easy
to implement as a module.  I suppose it might require some minor
nudges to the NC (and/or ND) modules, in order to make them recognize
the limitation when it was applied, but again, it seems trivial to me
(of course I'm not a lawyer, but I can't see what the complication would
be).

Of course, any addition of a module potentially makes things more
complicated, but ISTM that CC's commitment to a module-based
schemes adds a fixed complexity-cost which has not yet been justified
by the flexibility so far provided: it would've been cheaper to write
6 seperate licenses to cover the common cases:

CC-By
CC-By-SA
CC-By-ND
CC-By-NC
CC-By-NC-SA
CC-By-NC-ND

Adding one module to this doubles this complete enumeration --
but that's precisely why a modular system was proposed in the
first place. You already have the mechanism to deal with the
complexity. At this point, the "licensing wizard" is almost degenerate,
so the fact that its a sunk cost obviates any complaint that an Sn
system would produce more licenses.

>  And by ending up at a copyleft BY-SA license for the duration, you
>  still retain the income potential (on totally original works) of a
>  dual license from those unwilling to dip a toe in the copyleft waters
>  for whatever reason.

One nice thing: if the sunset applies to NC and ND, but not SA, I'm
pretty sure you can get just about any terms that you'd meaningfully
get if you provided a time-limited SA as well -- it keeps it under the
artists control, because (e.g.):

(now)                                  (3 yrs later)
CC-By-3Y                            CC-By                (i.e. does nothing)
CC-By-SA-3Y                       CC-By-SA                    "

CC-By-ND-3Y                      CC-By
CC-By-NC-3Y                      CC-By
CC-By-NC-SA-3Y                 CC-By-SA
CC-By-NC-ND-3Y                CC-By

Additionally, this combination becomes meaningful (it differs from
CC-By-NC-ND only in the way it expires):

CC-By-NC-ND-SA-3Y           CC-By-SA

(I'm sorry I keep changing the abbreviation -- I'm just not sure what
this limit should be called as a module).

>  Here is where I think artists should take a chance and experiment.
>  Release a better work or two as BY-SA and see what happens. Unless
>  you expect to be a one hit wonder, it will not wreck you.

Even so, it's likely to be a loss. This is basically a "loss leader" or
"free sample" strategy.  It's what I call a "weak" model, because it
doesn't encourage a business model based on copyleft, but rather
uses copyleft to promote an NC or proprietary profit center.

I'm not opposed to that, but it doesn't excite me that much.

>  It may be a bad risk to put all fo their current and future works
>  under a copyleft wholesale, but it is hardly a bad risk to put one or
>  a few under as an experiment to explore the possibilities.

So long as the loss-leader approach is used, there's a strong motivation
to keep using some form of NC to protect commercial sales.

So, let's say someone is following this model. I'll go ahead and use
the musician example that seems to be the most popular one with
CC:

Alice releases an album called "High on Freedom".  The album
uses NC licensing for all the tracks, except one, the title track,
which she releases under a CC-By-SA to promote the album.

Now, would we prefer to encourage Alice to use Perpetual or
a Seven-year Sunset NC for those other tracks?  Which will make
her more money?

The revenue potential, as understood by the conventional marketing
scheme, is higher for the Perpetual NC model, because she can
keep selling the album for longer.  But I think that model gets it
wrong...

What happens seven years later?  In the perpetual NC case,
it seems likely that the album will fade into obscurity and be forgotten
(and Alice along with it).  Because the free track is transportable
by free-license distribution regimes, it's likely to still hang around
(I still have a copy of Magic Mushroom's "Open Source", even though
I probably have never listend to anything else by them, and probably
won't in the future).   By the time the 80 years or so of copyright
expires, though, the whole thing is ancient history, and not very
likely to make any difference.  Besides, Alice is dead then, so any
benefit is unlikely to make much difference to her.

In the 7Y case, though, the album's tracks will become free, and
will get attention for that reason alone.  Fans will be able to share
their interest more efficiently, and this will all promote the album,
and its artist, within free-license channels (which were previously
unavailable to Alice, and would be permanently off-limits if she
used perpetual NC).

Alice's sales figures on her next album, "Frontiers of the Imagination"
will soar as a result. She also gets a lot of community goodwill from
people who've seen this model and like it (i.e. community members).
Some of her earlier works stands a chance of achieving "anthem"
status for people who want to reuse the material in full or partial form
to back free copyleft products (e.g. podcasts).   It's up to her
to be that good, of course, but the licensing won't get in the way.
Commercial licensing for non-free uses will likely go up as well.

None of this is *fundamentally* different from the perpetual NC
model approach, but the result is (IMHO) much stronger. Instead
of one isolated track from an album, the entire first album promotes
the second one.  Instead of the retained possibility of a trickle of
income for 80 years, the artist has the potential to make quite a
bit of money quickly.

Furthermore, the community benefits much more, and there is
likely to be a reciprocal response to artists who benefit the community.
Artists like that will make the community's "A list", and they will
be the ones people think of when looking for talent.

Cheers,
Terry

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