CC in Review: Lawrence Lessig on Compatibility

Lawrence Lessig

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From last week’s episode:
Next week I’ll describe a second initiative that we’ll be launching over the next year. And while this second initiative will be important for Creative Commons, it will be critical to the ecology of creativity generally. Stay tuned.

The story continued:
Creative Commons didn’t invent the idea of free public licenses. Richard Stallman did, at least in the first broadly successful way. Nor did Creative Commons invent the first free public licenses for content. Before our work, there were many others who had followed Stallman’s lead, releasing free licenses tuned to creative work. The Art Libre license is perhaps the most famous. The BBC’s Creative Archive licenses are the most prominent recent examples, freeing access to important British culture, at least for British citizens. And finally, the Free Software Foundation’s GNU Free Documentation License is a copyleft license designed initially for software documentation, but used most prominently by the Wikipedia project.

These free licenses all share a common goal. With each, the aim is to give creators the opportunity to offer others important freedoms. The particular freedoms may be different. The Creative Archive licenses, for example, are not all copyleft. And the restrictions of the FDL make it inappropriate for much of the work covered by the Art Libre license. But these differences reflect the diversity that exists across creative communities. The important point is not the differences but instead the common aim.

Yet all of these free licenses, as well as the current versions of all Creative Commons licenses, share a common flaw. Like the world of computing in the 1970’s, or like the world of content that DRM will produce, these licenses wrap creative work in ways that makes that creativity incompatible.

For example, imagine you’re a high school student writing a report about the philosopher Wittgenstein. But because you’re a high school student in the 21st century, your report won’t be a traditional essay. It will instead be a short film. Your title is “Wittgenstein’s World, Today.” And you create your movie based upon Wikipedia’s biography of Wittgenstein.

Your plan is very simple: You’ll set the life described in the Wikipedia entry to film, supplement it with images that you find in Flickr, and add music that you’ve downloaded from Opsound.

As I described earlier, perhaps the most important feature of digital content is that from a technical perspective such a project is now trivial. Technology now gives creators — at a relatively tiny cost — the ability to take sounds and images from the culture around us and remix them to produce something new. A high school student using off the shelf technology will find no technical barriers to the remix I’ve just described. Of course, you’ve got to be good creatively. It’s not easy even with the best technology to make a film. But that challenge, one might well think, is the appropriate challenge for a creator. Get the technology out of the way, and let the difficult task be the task of creating.

Yet there’s another difficulty lurking in this story that many are just becoming aware of within the Free Culture Movement. You might be able — technically — to remix all this creativity. But can you remix it legally? Will the licenses that “free” content permit that free content to be remixed?

The astonishing (and for us lawyers, embarrassing) answer is no. Even if all the creative work you want to remix is licensed under a copyleft license, because those licenses are different licenses, you can’t take creative work from one, and remix it in another. Wikipedia, for example, is licensed under the FDL. It requires derivatives be licensed under the FDL only. And the same is true of the Creative Commons Attribution-ShareAlike license that governs Opsound content, as well as much of the creativity within Flickr. All of these licenses were written without regard to the fundamental value of every significant advance in the digital age — interoperability.

We’re going to fix this. Or at least, we’re going to try. One way would be for everyone to use just one particular Creative Commons license. But bullying the world into using a single license is neither consistent with our values nor sensible for the ecology of free culture. So instead, we are launching a project to facilitate interoperability among sufficiently compatible license types. And we will work hard to persuade others within the free license ecology to join us in this movement.

Here’s the basic idea we’re starting with (though recognize that there will be lots of discussion before we settle on any final plan). As you’ll see, it builds upon the strategy we’ve already adopted to assure compatibility across licenses in different jurisdictions:

Creative Commons licenses come in three layers: (1) a human readable Commons Deed, which describes the freedoms associated with the content in terms anyone should be able to understand; (2) a lawyer-readable Legal Code — a license — that makes enforceable the freedoms associated with the content; and (3) machine-readable metadata that makes the freedoms associated with the content understandable by computers. You can visualize the three together like this:

Early on, we started porting our licenses to other jurisdictions, so that people around the world can license their creativity under local law. In that process, our aim was to assure that creativity licensed in one country was compatible with creativity licensed in another. Thus we multiplied the licenses at the second layer of our architecture, creating something that looks like this:

Today we announce the beginning of a project to explore expanding this interoperability beyond Creative Commons licenses. We’ve begun a process to build a board (what we’ll call the Creative Commons Legal Advisory Board, or ccLab for short) that will be composed of experts in licensing from around the world. This board will establish procedures by which similar free licenses, upon submission from the license curator, can be deemed “compatible.” And if a license is deemed compatible, adds CC metadata to express the freedoms associated with the content, and links to a Commons Deed, to explain the freedoms associated with the content, then we will certify the license as within the federation of free licenses that we’re trying to build. This world will then look something like this:

If we succeed in this project, then creative work will more easily be able to move from one license to another, as creativity is remixed. And this ability for creative work to move to compatible free licenses will provide a market signal about which licenses are deemed more stable, or reliable, by the free licensing community. Free culture will no longer be ghettoized within a particular free license. It will instead be able to move among all relevantly compatible licenses. And the world of “autistic freedom” that governs much of the free software world will be avoided in the free culture world.

This project won’t, of course, make incompatible licenses compatible. For example, work licensed under an Attribution-NoDerivatives license can’t be mixed with work licensed under an Attribution-ShareAlike license. That incompatibility, however, is intended by the creator. And while I agree with many that we should work to reduce this sort of incompatibility as well, I believe it is much more important to eliminate unintended incompatibility first. The creators who are joining the Free Culture Movement by releasing their creative work under free licenses do so because of the values those licenses express. They don’t do so because of the particular flair of legal prose that one free license might have over another. We must find a way to push the egos of the lawyers off of center stage, so that the values of the creators can finally be realized.

This is not an easy project. It will require lots of support. Most importantly, it will require all of us within the Free Culture Movement to put aside our own parochial interests, and work to cooperate for a sensible end. As Richard Stallman famously said:

“If we don’t want to live in a jungle, we must change our attitudes. We must start sending the message that a good citizen is one who cooperates when appropriate…”

Stallman is absolutely correct. The creators who have chosen the values of free culture don’t want a world where their creativity can’t be used consistent with their values. We who are building the infrastructure of free culture have a responsibility to respect their values.

Next week, I’ll turn to some of the critics of Creative Commons. But this week, indeed, right now, we still need your support.

We’re one month to the end of this drive, and have a long way to go. Check out the Red Hat dollar for dollar challenge.

9 thoughts on “CC in Review: Lawrence Lessig on Compatibility”

  1. Step one would be the modifications to make the

    Attribution and BY-SA licenses DFSG-free. If done

    carefully Attribution should end up GPL-compatible and compatible with most free licenses.

    The GPL is best described in intent as BY-SA-ProvideSource, a niche not quite supplied by BY-SA.

    The GFDL will never be generally compatible with most other licenses because of the "Encumbered with Any Author’s Pet Writings" clause, also known as "Invariant Sections". Wikipedia shouldn’t be using it, and neither should anyone else. 😛

  2. Mr. Lessig,

    Tables Turned would like to give our users the option of incorporating these agreements. What a great idea.

    We’re currently assembling license agreements that allow copyright holders to have their music played on podcasts. IAn "allow remix?" option would be a great service to offer record labels.

    Who should we contact?

  3. Rob Myers Writes:

    This would disqualify the FDL (invariant sections, sections that must be removed)

    Steve B Writes:

    "GNU-FDL provided there are no cover-texts or invariant sections (which would be considered restrictions that would violate our new clause because they do not protect the right to edit). "

    Rob Myers Writes:

    and BBC-CA (noncommercial, locked to the UK).

    Yes, but I am only talking about licenses that SHOULD be compatible. GPL, FDL, Art-Libre, and BY-SA all support the exact same rights given to the licensee. They are in the same spirit of cooporation. However, they are NOT actually compatible, because BY-SA says you MUST USE BY-SA, and because other licenses say similar things.

    Rob Myers says:

    "But driving derivatives of BY-SA work towards minor licenses won’t help reduce the fragmentation of the commons. Quit the opposite.

    The creators who have chosen the values of free culture don’t want a world where their creativity can’t be used consistent with their values."

    I wholeheartedly agree with this. But remember, we aren’t talking about changing what the artist wants to be done with it. No one suggested mixing BY-SA with BY-NC or BBC-NC, or mixing licenses that are in no way consistent with the artist’s original intent. However, the "FREE" licenses like those as above, all share the same basic ideas, and the artist who licenses something as one of them believes in copyleft remixing and in attribution.

    However, the problem is that even though something under the GPL and BY-SA are technically released under the same rules by INTENT, various ideosyncracies make them not TECHNICALLY compatible, even though it is obvious they are supposed to mean the same thing. For example, as I suggested above, the GPL and FDL have various restrictions that are designed to ensure the right to make derivative works, like sharing source or transparent formats, that BY-SA does not have. MY suggestion is designed to rectify this by making it legal to use ANOTHER license provided that it only has restrictions on attribution and sharing alike, and that any additional restrictions only serve to protect those rights.

    Rob Myers says

    So don’t take their work and place it under licenses that can be used ignore or subvert their intent.

    Exactly. As a matter of fact, if it is discovered that the legal wording of the license DOES subvert their intent (by not actually allowing derivative works with open-source or other free-culture works), then the legal wording should be CHANGED.

  4. Isn’t the problem that license texts say that derivative works may be licensed only under the current license or subsequent versions of that license. Instead licenses should be modified to read that derivate works may be licensed only under the constraints specified by this license or subsequent versions of the license.

    Then if you want to mix works under two different licenses you could have a license compiler automatically solve the constraint problem to produce a new license that fulfills the constraints of the parent license (not so different from what the C++ compiler does with multiple inheritance).

    It might even be possible to write a reverse-compiler to convert this license back into legal code and perhaps human-readable form.

    Aside: Why aren’t there human readable forms in multiple languages in your diagrams?


    * Contraint Programming

  5. Steven B writes:

    <i>basically this modification changes CC-BY-SA so that it is compatible with any license that also guarantees Attribution And Share-Alike provided there are no additional restrictions</i>

    This would disqualify the FDL (invariant sections, sections that must be removed) and BBC-CA (noncommercial, locked to the UK). Art Libre might be OK. But driving derivatives of BY-SA work towards minor licenses won’t help reduce the fragmentation of the commons. Quit the opposite.

    Lessig writes:

    <i>The creators who have chosen the values of free culture don’t want a world where their creativity can’t be used consistent with their values.</i>

    So don’t take their work and place it under licenses that can be used ignore or subvert their intent.

  6. Actually, I think that a lot of the problem could be fixed very simply with

    a very small revision to CC-BY-SA 2.5. (At least, the english version)

    As I interpret it, CC-BY-SA 2.5 Section 4.b allows works to be relicensed rectroactively, simliar to the "or any later version published by the Free Software Foundation" clause often used in GNU GPL dedications.

    What I would do is this: in the next version of CC-BY-SA, insert a sentence that refers to the freedoms in section 3 as the terms for an unknown license. Perhaps I could explain that better if I just did it myself. I would take some of section 4.b out and make it a section all by itself, as follows:

    "4.b: You may not distribute, publicly display, publicly perform, or publicly digitally perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License." Then I would change the beginning of section 4.b (now it would be 4.c) to read as follows:

    " 4.c) You may distribute, publicly display, publicly perform, or publicly digitally perform a Derivative Work only under the terms of this License, a later version of this License with the same License Elements as this License,a Creative Commons iCommons license that contains the same License Elements as this License (e.g. Attribution-ShareAlike 2.5 Japan), or another license that grants the licensee of said license the same rights as underlined in section 3 of this License, with no additional restrictions beyond those necessary to enforce section 4.b of this License, with the interpretation on this matter to fall to the Licensor of this Work. You must include a copy of…<continue current section 4.b text minus the text in the new section referenced above>

    Anyway, that is my idea. Even though IANAL, and there is no doubt that this may need revision, I think that this might be sufficient to work with at least SOME of these problems,by making the work automatically compatible with any GPL-compatible copyleft license, and even the GNU-FDL provided there are no cover-texts or invariant sections (which would be considered restrictions that would violate our new clause because they do not protect the right to edit).

    However,the new version would be compatible with the GPL’s must-share-source restriction (and other source-sharing license restrictions in other GPL-compatible copyleft licenses) because this restriction is clearly necessary to protect the right to edit a work as defined in our new section 4.b. It would not take a leap of judgement to see that compiling source code (or any other media that could be compiled in some sense) to a binary-only executable or another restrictive format in the sense of the GPL’s "binaries" terminology or the FDL’s "Opaque" terminology, would be "technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement."

    If I am difficult to understand above, basically this modification changes CC-BY-SA so that it is compatible with any license that also guarantees Attribution And Share-Alike provided there are no additional restrictions (like adding non-commercial only or something) UNLESS the restriction serves to PROTECT Attribution and ShareAlike (like requiring source code be distributed also, like putting notice of changed versions, etc). I have a feeling that this would be very beneficial and help the Free Culture movement by linking a very large number of free-culture licenses through BY-SA. (like GPL, Art-Libre, GPL-compatible, etc.) I just came up with this though, so what does anyone else think?

  7. So this has me wondering, since Wikipedia uses GFDL with the specific
    options of “with no Invariant Sections, with no Front-Cover Texts,
    and with no Back-Cover Texts” Do I assume correctly that at least
    as far as creating derivative works from Wikipedia content goes,
    there is no specific problem with “Encumbered with Author’s Pet
    Writings” however, there is still the problem that Wikipedia
    content is a problematic source to use to create derivative content
    CC BY-SA does not address “Provide Source”.

    So, there is no way around this? Or can you use CC BY-SA wiht the
    addition of a”Provide Source” clause, which, from a pratical (non-
    legal sense) is often necessary to comply meaningfully with the
    idea of “Share Alike”

    Any further thoughts on this?

  8. You mention Richard Stallman as creating the first public license (the GPL), you mention wikipedia using the GNU-FDL, and you quote Stallman. Yet, my understanding is that none of Creative Common’s licenses will ever be compatible with either GNU-GPL or GNU-FDL, since both have source code or “transparent” requirements that are not in the CC-ShareAlike license.

    Whether you intend CC-SA to eventually be compatible with GNU-FDL isn’t exactly clear, but if that isn’t the intent then mentioning them certainly adds confusion.

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