Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

drew Roberts wrote:
> On Monday 26 February 2007 08:47 pm, Terry Hancock wrote:
>>Trying to get a By-SA license on photographs to apply to text that is
>>merely associated with the pictures is a very bad idea for many
>>different reasons.
> 
> Please explain these to us. I think having people use my BY-SA photos in 
> ARR 
> works is not to my benefit. I need to see that the problems you refer to 
> outweigh the benefits.

Freedom issues aren't primarily about your benefit -- they're about the
users' benefit. A creator is always, in a game theoretic sense going to
be motivated to seek more and more control. But that's not what we're
supposed to be about here (or if it is, then I have to abandon CC entirely).

The problem that free licenses are supposed to solve is the enormous
overhead associated with “rights-clearing” a creative production, and
the resulting chilling effect on creative activity generally. Too many
constraints creates an environment where it is no longer practicable to
create content.

It is in the common interest to avoid this situation.

Images create a number of special problems because of the way they are
used. For example -- what if you collate a set of images into a neat
block for web layout purposes, combining them into, say, a 3x3 grid.
This is for example necessary to create any kind of meaningful
juxtaposition of images in the blogging software I use at Free Software
Magazine (it doesn't have any way to create a figure composed of
multiple image files, so if I want a combined figure, I have to
pre-process the result into a single image). This is irritating enough,
and it is created by the existing license. However, I've learned to live
with that, even though it has made it impossible for me to publish
certain images in my blog that I've spent time creating.

This has some annoying consequences. Suddenly, it matters *which* free
license the images are under.  Ordinarily, I can use By, By-SA, GFDL,
GPL, Public Domain, and even "fair use" ARR images under certain
circumstances.  The articles are usually By-SA, but I occasionally use a
"Verbatim Only" license. The latter is useful if the article is very
precisely stating an opinion which may be controversial and which I
don't want misrepresented. I also use it for articles in which I've
incorporated fair use materials, because modifying the article may
affect the fair use status (that's mostly to protect the person copying
it, as I wouldn't be accountable for that -- I figure this will get them
to email me if they need more than that, and I can explain what I think
the problems might be).

There are a lot of complex reasons for choosing these different options,
and the conflicts between licenses simply create too many constraints.

Now I know that some people have suggested a license that required only
that "semantically linked" content be "under any free license". On the
surface, this seems somewhat reasonable, but in practice, I think it
would be a legal nightmare.

First of all, what does "free licensed" mean? Creative Commons, Debian,
Free Software Foundation, and the Open Source Initiative all have
slightly different ideas about that definition. None of them consider
the Verbatim case I mentioned above.

If we were to apply the suggested rule, then we would have the shocking
case where I can use copylefted material under "fair use" in an ARR
work, but I *can't* use ARR work under fair use in a copylefted work!

More to the point, I can't write my own article and use a combination of
 illustrations from different sources with different licenses. I
certainly can't do so if one of the pictures is only available under a
verbatim, press publicity photo, or fair use terms (but otherwise ARR).

That happens a lot. When companies provide images of their products,
they are usually under more restrictive "non-free" terms. And yet this
is the obvious way to identify/reference their products in an article.
If I want to talk about the "SpaceMouse" and you don't know what I'm
talking about, the press photo from the company is the way to go.

Needless to say, I check Flickr to see if I can find By or By-SA images
of the device, but they weren't that popular (it's a high-end accessory
for things like engineering workstations). I don't have one myself, so I
can't take an original photo (and they are WAY expensive). So, I use the
press photo.

But uh-oh, according to your plan, I'm in a deadlock. I have By-SA and
ARR photos in one article. Can't publish. You've muzzled my free speech
rights!  And remember, my article text is normally under By-SA anyway.

I just don't think you can call that "free" anymore if you do that.

So, on the one hand, even if you can solve the "definition of freedom"
question, there are significant cases where such a rule would interfere
with my freedom of expression.  And on the other, I am extremely
skeptical of reaching an agreed-upon definition of freedom that we can
all be happy with.

It's also relevant to point out some issues with concept of "semantic
linking". What exactly does that mean?

Remember when the CSS folks were suing people for merely *linking* to
pages describing or providing DeCSS? That's almost certainly a "semantic
link" (and from a software perspective, it is nearly identical to the
way an image is identified from HTML code -- the text and picture do not
actually come together except within the user's browser. No "copy" of
the combined work is ever actually made!

Then there are programmer's blogs, who, apparently having no visual
sensibilities at all, simply link random pictures of mountains and bunny
rabbits into their blogs to "prettify it" or "add some space". These
pictures often have nothing whatever to do with the text.

So, do we have to apply a test of deciding "how linked" the images are
to the text?  Yuck. What a lawyer gravy train that would be!

Then there's the question of transformative use. If you take a really
nice picture of a fork, it may be a wonderful work in its own right, but
 if I make a clever pun in my article about "forking" a project, and use
the fork picture as the punchline, do you really feel that my work is
sufficiently dependent on your authorship that you should have the right
to tell me how to license my work?

Again, I would find it difficult to regard such terms as "free".

You all are right of course, that there is a negative consequence to be
found here in that people may suddenly decide to retract commercial
quality By-SA work. But you know what? In my experiences on Flickr, I
find that much of the *best* photography is actually under the "By"
license. So I don't think it's as big of a threat as you make it out to be.

And as for your wanting to trick or pressure people into making their
content free-licensed, I think that is seriously wrong-headed. There are
enough good reasons to create free-licensed content, and enough of us
doing it everyday anyway, that it's not going to go away. Free licensed
images help to enable that content by providing freely distributable
images to go along with freely distributable articles. The fact that
there are also some edge case free-rider situations is really a pretty
minor problem, in my opinion, and it simply isn't worth all of the
problems it would create.

Also, I expect to create By-SA content commercially as much as I can get
away with, and I have serious doubts about someone with the sorts of
motivations you envision being happy with that. The fact that I'm making
money, partly enabled by their content is going to piss them off, if
they really have this "I'm giving to charity" and "I don't want to
undercut commercial competition" idea in their heads. If that's what
they are thinking, then they are really thinking in terms of NC, not SA
licensing.

There are, of course, a LOT of people who are free riding on my free
licensed editorial content. A number of my blogs get mirrored or copied.
So long as the rules are followed, though, I don't have a problem with
that -- it just spreads my message further, and I think that's a good
thing. But if I were to worry about their making money off of my content
or something, that would just get silly.

Free software and free culture work, though, because free riders don't
really cost you anything. The *problem* is when your work gets taken
away from you, because somebody modifies it and sequesters it in some
way so that you don't get to benefit from it. There's a fundamental
fairness issue here, and trying to bind associated media, IMHO, steps
over that boundary. IMHO, the existing terms are a good compromise.

Cheers,
Terry



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