Discussion of all things related to Public Domain

[Lawrence Lessig <lessig AT pobox.com>]

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 From last week's episode:
Next week, I'll turn to some of the critics of Creative Commons. But  
this week, indeed, right now, we still need your support.
http://creativecommons.org/support/

The story continued…
Creative Commons is a young organization. And while we've been more  
successful than I ever imagined we'd be, we've also made mistakes.  
Some of these mistakes we've corrected. Some I hope to persuade us to  
correct. But throughout the three years since our launch, we have  
worked hard to build a solid and sustainable infrastructure of  
freedoms for creators.

Along the way, we have picked up some critics. I don't have the space  
here to address every criticism. In this email, I'll talk about just  
two — one directed at our NonCommercial license option, and the other  
at two of CC's non-core licenses. But I'll continue this discussion  
next year in a new forum that we'll launch just for this purpose.  
Mark Shuttleworth is my model here, and I will be a part of that  
discussion whenever I can.

In the meantime, a bit from our critics.

(1) Criticism of the use of Noncommercial licenses
In an article in http://intelligentdesigns.net , Erik Möller argues  
against the use of a Creative Commons NonCommercial (NC) license. His  
argument has five parts, but the core is a concern about  
incompatibility. As he puts it, "[f]ree content is no longer a fringe  
movement." He cites Wikipedia as an obvious example, and correctly  
points out that content licensed under a NC license can't be included  
within Wikipedia. This is a problem, he argues, especially for  
"collaborative projects." As he says, "marking up regions of content  
as non-commercial and consistently following these boundaries is  
almost impossible in a collaborative environment."

Möller is absolutely right. The NC license does interfere with this  
sort of collaboration. It does create potential incompatibility. Of  
course, as Möller also acknowledges, there is incompatibility even  
without the NC restriction: As I described last week, [ http:// 
creativecommons.org/weblog/entry/5709 ], it's not possible to mix  
content licensed under the FDL with even an equivalent CC license.  
That's because both licenses, as they are presently designed, block  
interoperability. This is a real problem for the ecology of free  
culture. And again, as I argued last week, this is a problem that  
Creative Commons intends to fix by launching a project to federate  
free licenses to encourage interoperability between licenses of the  
same type.

Yet even if we succeed with federation, the problem that Möller  
describes will remain. Some license types are incompatible with  
others. And among the kinds of incompatibility most likely to cause  
trouble is exactly the sort Möller has identified: The NC restriction  
will block content from being included within ShareAlike projects  
such as Wikipedia.

So what's the solution? My recommendation is much like Möller's — use  
the least restrictive license that you can. But I say "much like  
Möller's" because my sense is that he'd really like to see the NC  
license never used at all, and I believe, given the wide range of  
creators using CC licenses, there are important cases where a NC  
license makes sense.

For example, imagine you're in a band and you've recorded a new song.  
You're happy to have it spread around the Internet. But you're not  
keen that Sony include it on a CD — at least without asking you  
first. If you release the song under a simple Attribution license  
there's no reason Sony (or anyone else) couldn't take your song and  
sell it. And I personally see nothing wrong with you wanting to  
reserve your commercial rights so that Sony has to ask you permission  
(and pay you) before they can profit from your music.

Möller suggests you can avoid this problem by copylefting the song,  
using, for example, a CC-ShareAlike term. As he argues, "[a]ny  
company trying to exploit your work will have to make their ‘added  
value' available for free to everyone. Seen like this, the ‘risk' of  
exploitation turns into a potentially powerful benefit."

But this is not quite right. The ShareAlike requirement kicks in only  
if the adopter makes a "derivative work" out of the song. Merely  
adding it to a CD isn't a derivative work. So that's not a sufficient  
protection against this particular form of exploitation. And it is  
thus for this sort of case that the NC term is designed.

It is certainly true, however, that for a great deal of the  
creativity being added to the net — especially in the context of  
collaboration — there's not much need to protect commercial rights.  
My blog, for example, is licensed under a simple Attribution license.  
CNET Japan translates the blog and sells advertising around its  
content. For my purposes, that's just fine. I write to spread ideas;  
I try to avoid tariffs where I can. From my perspective, Möller is  
certainly correct: the least restrictive license is enough for me.  
And I would generalize the point: We all should use the least  
restrictive licenses that we can, consistent with our goals.

We've not done a good enough job helping users understand this.  
Möller is right to call upon Creative Commons to do better. We will  
do just that. But the lesson Möller is absolutely right to teach is  
that we all should consider the consequences of our choices. Some  
will want nothing more than that their content be available  
noncommercially. For them, the NC license is a useful option. But  
others really simply want their work used and incorporated into the  
remix of the net. For them, the NC option may do more harm than good.

(2) Criticism of the Sampling and Developing Nations License
Creative Commons offers six core licenses. Each of these six gives  
people the freedom "to copy, distribute, display, and perform" the  
work. But in addition to these core licenses, Creative Commons offers  
two licenses that don't give these freedoms. These are the "Sampling"  
License, and the "Developing Nations" License.

The Sampling license was inspired by the band Negativland and one of  
Brazil's most famous musicians and current Culture Minister, Gilberto  
Gil. Basically, it say this: you can remix, or "sample" this content.  
The default Sampling license says you can even remix for commercial  
purpose. But the default Sampling license also says you don't have  
permission to copy, distribute, display or perform the underlying  
work. Those rights are reserved. The only right given away is  
essentially the right to make a certain kind of derivative.

The Developing Nations license is different. It was inspired by  
activists in the Access2Knowledge movement —most prominently, Jamie  
Love. They wanted a license that would free content (completely)  
within developing nations even if it wouldn't alter the rules for  
that content outside of developing nations. So the Developing Nations  
license basically says that this content is free even for commercial  
use within a developing nation. But outside of the developing  
nations, ordinary rules apply. That means for content licensed under  
the DevNat license, outside of developing nations, there is no right  
to copy, distribute, display or perform the underlying work.

Richard Stallman criticizes the one element that these two licenses  
have in common —that while they both secure important freedoms, they  
also both forbid (for some groups at least) the right to "copy" the  
underlying work. For him, that right is fundamental. And thus for  
him, any license that denies this fundamental freedom does not  
deserve the support of Creative Commons. He's thus asked us to either  
drop, or disassociate ourselves from, these two licenses.

It's extremely important first to clarify what this disagreement is  
not. Some of you will remember the battles between the "free  
software" and "open source software" movements. To some, those were  
battles between a movement that believed in values and a movement  
that believed in pragmatism. The disagreement between CC and Richard  
Stallman is not of that sort. It isn't pragmatism that drives us to  
adopt the Sampling and DevNat license. It is instead a different  
conception of value. CC will never offer licenses that secure just  
any freedom; we believe CC licenses should only secure important  
freedoms. But that's precisely what we believe these two licenses do  
— they secure important freedoms, even if they don't include the  
freedom to copy. That's not because the freedom to copy is not an  
important freedom in some contexts, or for some creators. But the  
freedom to copy is not an important freedom in all contexts — at  
least if it interferes with other important values.

For example, imagine you're a teacher in Nigeria. You want textbooks  
to teach Algebra to your Fulani speaking students. That you would  
have the right to copy a particular English textbook isn't really of  
much use to you. What you need is the right to translate that book.  
In that context, the derivative right is the critical one; the right  
to copy is unimportant.

The same point could be made more generally. Our view is that the  
necessary freedoms in different domains of creativity are not  
necessarily the same. That music could be different from software,  
software different from film. And as we have done throughout this  
project, we have asked leaders in different fields who share the  
values of freedom to help us understand what values are important  
within those specific fields. Gil and Negativland know something  
about music. So when they say that the freedom to remix is critical  
even if the freedom to copy is not, it would take a great deal to  
persuade us they are wrong.

The same is true of the DevNat license. The target here is creativity  
that depends upon a domestic market but never expects to exploit a  
developing nations market. So, for example, one of the coolest  
adopters of these licenses are architects designing low-cost housing.  
They've marked their designs with the DevNat license, meaning people  
in the developing world are free to do with them what they want. But  
in their view, at least, they can't also give these designs freely to  
their direct competitors.

These creators may be wrong. Gil, Negativland, and Jamie Love might  
be mistaken about what rights the relevant creators need to keep. But  
what's needed is an informed debate among creators about what  
freedoms they need. We hope to encourage this debate. But in the  
meantime, we'll continue to guide ourselves based upon the values  
that the relevant communities have identified.

As I've said, there is much more I should say about other thoughtful  
criticism. This email, however, is already too long. We'll announce  
the discussion space sometime early in the next year. And stay tuned  
next week when I'll turn to some of the particular projects we're  
working on right now — as well as ask again for your support.
http://creativecommons.org/support/


-------

To link to or comment on this message, go to:
http://creativecommons.org/weblog/entry/5719

Week 9 - Lawrence Lessig on Compatibility
http://creativecommons.org/weblog/entry/5709

Week 9 - Lawrence Lessig on Compatibility - Spanish Version
http://mirrors.creativecommons.org/translations/lessig-letter-9-es.pdf

Thanks to Maria Cristinia Alvite for translation.

Archive of Lessig Letters
http://creativecommons.org/support/letters

Support the Commons
http://creativecommons.org/support

Learn More
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For comics and movies: http://creativecommons.org/about/licenses/how1,
http://mirrors.creativecommons.org/




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