Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

On Apr 13, 2012 7:05 PM, "Gregory Maxwell" <gmaxwell AT gmail.com> wrote:
>
> On Fri, Apr 13, 2012 at 4:24 PM, Andrew Rens <andrewrens AT gmail.com> wrote:
> > Proposed Definition: commercial use is the transactional use of the work;
> > that is selling, bartering, or letting the copyright work or including the
> > work in a paid for advertisement (and the like).
>
> I'm not particularly a fan of NC/CRR—but given that it exists, it
> ought to actually do something. For many works, a definition which
> excludes distribution for the purpose of selling ads running alongside
> the work would effectively moot the license, since advertising is by
> far the most significant way that creative works are monetized online.

As I mentioned in my introductory email if there are clearly defined legal acts of a commercial nature then they should be considered as possible additions to to the list. The question is whether the category of running ads alongside can be clearly defined. I'd like to see proposed definitions along these lines.
>
> A "non-commercial" license which doesn't meaningfully prohibit
> monetizing the work in all the ways someone might choose to monetize
> it even absent a license really doesn't do much except impose costs
> and incompatibility with the more freely licensed world.

Not even a a maximalist reading of copyright law can prohibit all the ways that a work can be monetized, a coherent way to define monetization hasn't emerged yet, instead all attempt suffer from the same vagueness as the nc clause.

Copyright law doesn't restrict every act with a work, since that leads to indeterminacy (at least at the margins) but specific acts such as copying. The licences are built on copyright as it is, and permit some of the uses prohibited by copyright law subject to certain conditions.

One of those possible conditions is the current "non commercial option".

Greg I am confident that you and almost everyone on this list gets that, what I am doing is making clear why I think that all the ways to monetize a work is not a useful test for a licence.

>
> (And, in particular—ignoring charity, advertising income is often the
> only mechanism available for small-scale authors to directly gain
> compensation for their work. Anyone who wants to use more restrictive
> licensing under the rationale "if anyone is getting paid for it, it
> ought to be me" would be a fool to not capture advertising income)

Have you successfully used the NC licence to ear advertising income? It would useful to see examples of such successes.

I've seen the opposite, NC licensed content alongside advertising. Some claim that is a violation of NC as it currently stands, others regard it as permited or at least unclear.
>
> A permissive approach towards this kind of monetization may be popular
> among people practicing that business, but I don't think that a
> license legislated preference for the
> "we-sell-your-eyeballs-not-the-book" business model is in the best
> interest of the public or the authors of the works in question.

If it is popular that should give us pause to think that perhaps those practising such businesses have determined that to be the best option available to them to achieve popularity of their work through having others distribute them.

Those business models would be outlawed by a license legislated preference for the "please don't bear my distribution costs for me unless you pay me for the privilege" business model".

Is that a business model?
>
> I certainly don't think that precluding, for example, small-run print
> publication—like a CC-licensed book-of-the-month club—while permitting
> Ebaumsworld or whatever to net hundreds of thousands in advertising
> income from the work is an outcome which is desired by someone
> choosing an NC license. But I believe that is exactly the sort of
> effect that the 'selling, bartering, or letting' restriction has.

Do you think NC as currently defined avoids this?  If you've spent much time on CC discussion lists over the years you'll have seen people who maintain that NC bans both you examples, others who think it permits both, and yet others who think it allows Ebaumsworld's use but not sale of a CC licensed book of the month club and vice versa.

>
> If you want to do something useful about commercial selling,
> bartering, or letting — well, that is the kind of uses that copyleft
> licenses regulate. (By forcing them to pay for their use by preserving
> the freeness of the work).

In six years of advising non-profits, Para-statals, government officials , entrepreneurs, publishers, film-makers, musicians, photographers, authors and a bunch of other I've found that many of them want to restrict selling, bartering and letting and then themselves sell, barter and let the works they are allowing others copy free.

I've persuaded some of them that copyleft licences are better for their businesses but not all, and that isn't really very surprising, not everything is software, not all business models benefit from others improving a work, and some licensors have business models that benefit from signalling clearly that the commercial rights are reserved and can be exercised for a fee.

It might be that all of those who chose NC licences precisely because they wanted to control selling etc were mistaken about their own industries but I at least regards that is an empirical question and not one that can be answered in the abstract.

The bigger question though is how to create a clear category of commercial uses without attempting the impossible task of trying to capturing all the economic value of a work in an economy. The suggested definition may not be sufficient, but the utility of devising, testing and demonstrating that such a category is possible obviously extends beyond licensing to copyright reform.