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Subject: Development of Creative Commons licenses

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  • From: drew Roberts <zotz AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] Founders as a module? was Re: Getting to Version 3.0
  • Date: Wed, 24 May 2006 21:50:54 -0400

On Wednesday 24 May 2006 07:14 pm, Terry Hancock wrote:
> 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'.

Of course, but see below.
> I have noted a lack of evidence of successful proofs-of-principle of
> strong models of copyleft-art monetization.

And I face the same problem that you do above. It seems to me there is no
great effort on the part of many to create enough copyleft-art to make the
necessary experiments.
> 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'.

The thing is, some get paid to work on the Free ones as a result of these
> I understand that you have a vested interest in finding successful
> copyleft-based business models for art.

I think my real vested interest is in preserving my freedoms for the future.
think most people have the same interest but most don't see it. (Obviously,
it could just as easily be me who sees things incorrectly.)

> 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.

I think I do have a few, the main one is held back due to the country I live
in and to my considerable lack of organizational abilities. (I am a lousy
boss and motivator. At least in many areas.)
> So, while I don't think we should give up on exploring those options,

For instance, what about an NC on sales except physical copies at retail only
on a BY-SA license. Any thoughts on the effects?

> I think there will continue to be a strong incentive to use NC models.

Oh indeed. Likewise there will continue to be a strong incentive to use "all
rights reserved" 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.

This I agree with completely.
> > 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.

Nothing wrong with the service model. That said, I think it is more than
After enough copyleft mass has been built up, those making use of this have
an advantage over those that don't If your band can go to the club and
explain that you only perform BY and BY-SA work and so the club will not have
to pay PRS, ASCAP, BMI for your performances, that is a selling point for the
gig. Etc.
> > 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.

Just to be clear. Merchandise is not the 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.

Not necessarily. Let's say I have some songs that people are burning on CD
selling but they want some buzz and me to appear for an in store event. We
can negotiate a percentage deal on sales. (All sales by them, not just those
during the event.) I can also list them on my site as a preferred retailer as
they give me a share. Etc.
> > 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.

I don't see where selling originals and numbered prints is a marginal
for painters. Where do you think they make the bulk of their money?

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

Not if hte upper class can see a way to make a buck promoting other values.
> (Not that upper class values shouldn't be represented, but my
> point is that biases are introduced because of the model)

True, but in the big money models under "all rights reserved" isn't this the
case already?
> > 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.

Oh, I won't for a good while yet. I don't ever intend to but you never know.
> > > 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.

We can see the benefits, but we can't see what we may have missed. This goes
back to the issue brought up very early in this post.

> 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.

Bingo on the broken and unfixable. Unless we can find a way to break it more
while carving out a safe haven for Free works. There may be some
possibilities there.
> 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.

One difference between the public domain and the copyleft-commons is that
there still exists the dual-license monetisation option for works original to
the author.
> 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).

Can we start a copyleft "art" registry? How about here for a start:
> > > 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.

Oh, I think we see things the same way on this point.
> 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.

Indeed, in a similar way. People who get and use non-licensed proprietary
computer programs actually hold back the success of Free Software. If they
actually had to pay the going price and live by the EULAs, they might be more
willing to try and even invest in Free Software. FURTHER, and this is
something that we haven't really discussed, but it applies some to art as
well, they are giving the benefits of the network to the wrong model by doing

> 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.

I htink this is fairly accurate, but if you care about freedom, this is one
the prices to be paid in order to maintain it. I personally think CC may be
being a bit unwise in not pushing BY-SA more, but it is their call. (For
instance, they dropped BY-SA over at CC Mixter in order to keep BY-NC mixable
with all other works hosted there.)
> > 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.

We agree here too.
> > > 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.

Indeed, this has been one of my big points when I talk about there not being
creative commons a a result of these license but multiple sometimes
overlapping, sometimes not, commons(es?) which is another thing all together.
> 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.

I think it could have a chance for this reason as well.
> 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
> 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-ND-3Y CC-By
> Additionally, this combination becomes meaningful (it differs from
> CC-By-NC-ND only in the way it expires):
> (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.

Oh, but it might. we will not really know until there have been large scale
experiments to see what happens.

I see synergies between copyleft code and copyleft art where we can offer
things that regular players might fear to compete with.
> I'm not opposed to that, but it doesn't excite me that much.

Are you a big user of Free Software?
> > 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.

This is not what I am advocating. I am advocating running a real experiment
with copyleft works. See if you can't come up wtih profitable avenues that
would be unavailable to you with other licenses.
> 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.

It is how you might be able to make money off of the work of tens of
of other like minded creative people that I find interesting.
> 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.

BY-SA people make my A_list. To use your terms: CC-By-NC-SA-3Y people would
probably make my B+_list. BY people are probably on the A-_list.

Another thought, the infrastructure of freedom still has to develop. It is
hard to find works by license along with type.

For instance, if someone knows of a good way to find BY-SA music with a high
signal to noise ration on the searches, I would be very interested in hearing
of it.

it is early days yet and I am in it for the long haul. I would be very happy
for early successes, but they are not expected at this point.
> Cheers,
> Terry

all the best,

Record a song and you might win $1,000.00

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