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CC in Review: Lawrence Lessig on Important Freedoms

by Lawrence Lessig Copyright

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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.

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, 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.

Posted 07 December 2005

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