Are Non-Commercial Creative Commons Licenses A Bad Idea? Nina Paley & Cory Doctorow Debate...
from the clash-of-the-titans dept
Venerable author Cory Doctorow and I engaged in a friendly email debate this Summer, with the intention of sharing it to illuminate some issues confronting Free Culture and Creative Commons licenses. It's quite long, but hits on many topics of interest to Techdirt readers.
Read Paley & Doctorow argue over Non-Commercial licenses
Cory releases his books under -NC ("Non-Commercial") licenses. The -NC restriction is Creative Commons' most popular, but has a lot of problems, including incompatibility with Free licenses. As an alternative, I recommend the Creator Endorsed Mark used with a copyleft (such as Share-Alike) license. The sparks fly from there! (Actually it's all very civil, but if I say sparks fly maybe more people will read it.)
I'm curious to read how the Techdirt community weighs on on these issues, so please comment.
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Filed Under: cory doctorow, creative commons, nina paley, noncommercial
Companies: creative commons
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I'm for the Creator Endorsed Mark
All in all, it truly shows that we can have a very good solution to the copyright debate without necessarily trying to throw everyone into jail just because they share the books.
It also solves the very real problem of how to keep authors paid. You don't endorse, then perhaps less people traffic your site.
Then again, middlemen in the book industry really like 360 deals and really hate competing against others...
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mistake
It starts with the basic assumption that copyright is good, and necessary, and builds on that with a license that only attempts to make copyright stronger.
This is the exact opposite of healthy.
That's like trying to cure a drunk by drowning him in alcohol.
Insanity is all you find down that path.
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Re: mistake
-Samuel Clement
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what other options are there?
So what exactly is the problem with a content creator saying "you can use this except not to make money from"? I mean, if that's what I want to do then what is the problem with me saying that? People are going to cheat any and all systems out there, so other than peeps cheating and me theoretically needing to police for those cheaters, what is wrong with me saying "use this for personal stuff not money-making stuff"?
BTW I'm hip to the idea of the school play that is also a fund raiser, and don't see how that can be considered commercial even though it is to get money. The purpose of the school is NOT to have a play to raise funds, so it is not commercial by design even though the content is being used in a fund-raising effort.
If I understand the Creator-Endorsed thing, it means someone can make money off my stuff and pop that mark on their work if they share some proceeds with me. But what about something with content from multiple people including me? Billy says "yeah sure I'll take a cut", the mashup person then puts the mark on and doesn't need to give a cut to me or anyone else. Is that what the mark will mean? ONE contributor got a cut? Great. Now I can take anything out there that allows commercial use, add some trivial little content to it, then grant myself a cut and permission to pop that useless little symbol on the product.
Great plan.
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Re: what other options are there?
The CE Mark is NOT a license! It's a mark. Used with a Share-Alike license, it packs a wallop. Used with a more restrictive license, it's mostly cosmetic.
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Re: what other options are there?
Can you register a copy right for multiple people?
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CC-NC is invidious
Also see Rob Myers post: http://robmyers.org/weblog/2008/02/24/noncommercial-sharealike-is-not-copyleft/
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Re: CC-NC is invidious
-NC stands for Not Copyleft.
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Re: CC-NC is invidious
The "good guys" in the Spanish Civil War were a diverse group of center, left, and radical left groups - Anarchists and Socialists and Republicans (as in Republic, not as in Conservative), etc. And on the other side were the Fascists, well-funded and single-minded. The good guys tore themselves apart from the inside while the Fascists just kept pressing on from the outside. Guess who won.
Doctorow and Paley have more in common with each other than either does with "content" industry executives and lobbyists. We can agree to disagree about the specifics, but reforming current copyright laws is something we can all get behind.
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Re: CC-NC is invidious
Impossible Thing #3: Free Arts
It is pretty interesting reading.
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Re: CC-NC is invidious
MrWilson agonized:
Welcome to the Free Culture movement.
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Re: mistake
I tend to agree with the abolition of intellectual property in general. So by this standard I would agree that the creative commons is indeed a mistake because it makes the assumption that copyright needs to exist in the first place.
I grow weary of corporations and individuals capitalizing on our culture at the cost of our ability to promote effective discourse and exchange of ideas. If the point of intellectual property is to slow down progress and create as many imaginary barriers as possible to actually creating then it has worked perfectly.
We are living in a world of 6 billion + people. How long can we continue to afford such privilege to such a minority?
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The conundrum
This is a great discussion, and it's good that you're having it.
It might help to take a step back and read between the lines. Traditionally, copyright has been presented as a balancing act between two parties: the artist's rights (in the U.S., primarily commercial rights) vs. the rights of the public.
What this dialogue shows is that there really is a triumverate of rights: the rights of the artists, the rights of the public, and the rights of commercial enterprises.
Now, if there's one thing that just about everyone can agree upon, it's that traditional copyright puts the majority of the rights in the hands of commercial enterprises (with artists' rights being secondary, and public rights being almost non-existent). The free culture movement primarily exists to put rights back in the hands of artists and the public. Which is as it should be, since commercial enterprises absolutely should have fewer legal rights than average citizens, across the board.
This is the impetus for the "non-commercial" and "share-alike" clauses. One theoretically prevents artists from being exploited by corporate entities; the other prevents the public from being shut out of creative works, mostly by those same corporate entities.
The problem is that everyone has a right to try to earn money. When they do, the barriers between commercial enterprises and everyone else start to crumble.
Nobody would disagree that charging the public for access to an artist's work is a commercial use. But what about using artists' works in advertisements? Corporations are not charging the public, and for the sake of argument let's assume that the company would just love it if the public shared them or even remixed them. Yet it is still a commercial use, and if you look at it purely from an artist's perspective, it makes a lot of sense to consider it one.
But where do you draw the line? People here have been justifiably critical of PRO's demanding money from coffee shops that hold open mic nights, or hair salons that play CD's. If a performer in a coffee shope covers your song, or the hairdresser plays your CD to drum up business, is it commercial use? If so, you're basically licensing your material just like ASCAP or BMI. How can you possibly differentiate between these people and the car company that used your music in a commercial? How can you even conceivably tell the difference between "commercial use" and "public use that tangentially involves money?"
On the other hand, doing away with the -NC clause has its own problems. One other justifiable complaint voiced on here is how much major labels exploit artists. Explioit them right up the ass. Without some sort of -NC clause, there is absolutely nothing to prevent this from happening. The other CC clauses might prevent them from exploiting the public, but the artists would still be hung out to dry.
Nina advocates the use of the Creator Endorsed Mark to let the public know that in these cases, the labels' offerings are not supporting the artists. It's basically a reverse "name and shame" badge. But there is one drawback: it depends upon the public's good will trumping other motivations. I think I've been around the block a few times, and if there's one thing I am reasonably sure about, it's that self-interest will beat morality every time. Frankly, I'm not even upset about it. If the choice is to spend $20 for the feeling of goodwill from helping an artist, and spending $10 on the label's offering so you can spend the other $10 on food... Well, people gotta eat, you know.
A purely capitalist response is to tell the artists, "too bad. If you can't find some way to get people to pay you instead of them, then you don't deserve the money." There's some truth to that response of course, but ultimately, it just puts the power right back into the hands of corporations, who have many times the resources of any artist. In fact, it's this power imbalance that allowed the labels to exploit artists in the first place. We're halfway back to where we started.
And looming behind us all, like some ghastly snoring ogre, is copyright law. All CC licenses have copyright as its backbone; they can't be enforced without it. And for better or worse, copyright law grants artists the ultimate decision on how to license their works. If the free culture's answer to artist exploitation is "man up and grow a pair," then we've lost before the battle has even begun.
This is not an easy situation, and obviously there's not an easy answer. I certainly don't have one. There might not even be an answer. It for exactly this reason that I wholeheartedly support the use of any and all CC licenses, even if they're not "libre" enough. (And not just because my own choice of license is not "libre" enough for a few people, Nina included.)
Whatever we choose, it'll be orders of magnatude better than the Righthaven world we live in now.
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Re: The conundrum
All people have the same rights, to be protected as equals - artists are no different from members of their audience.
A copyleft license neutralises copyright - restores back to the people their rights (to copy, etc.) that copyright suspends - as far as is possible.
Then there are the abdicatory licenses that declaw copyright, but don't go much further, e.g. attempt to require derivatives to be similarly licensed.
Any other copyright license modulates the threat of copyright, e.g. "I will only sue your ass off if I find you making any money in your infringement of my privilege".
In the case of CC-NC this is mostly an empty threat as few self-publishing artists have the litigation budget to detect and prosecute infringers - they're faced with finding a publisher (or Righthaven type troll) to whom they sell their copyright for them to so exploit.
The issue of CC-NC is nothing to do with reforming copyright. It's about helping self-publishing artists understand that it is counter-productive (cuts off their nose to spite their face). If they prohibit commercial use of their work they deny themselves greater exposure and the commission of those who would use their work commercially, e.g. "If I can't sell my labour that involves your published work then I won't use it, I'll sing someone else's song - and I'll pay them to write more songs, not you".
All commerce is exchange. All cultural intercourse is exchange. If you deny the public the liberty to exchange your published work as a cultural work, then you exclude your work and yourself from mankind's culture, or at best exhibit it in a sterile 'Do not touch' museum of the anal retentive.
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Someone then pointed out that
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Someone then pointed out by that reasoning that "since a DVD constitutes a 'license' to watch a movie, a per license fee of $10 million is 'completely reasonable'...!"
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Re: Re: CC-NC is invidious
You can wish it, but that doesn't make it so. Even Lawrence Lessig recognised the growth of the copyright abolitionist movement (as early as a few years ago).
There are a few abolitionists that comment on TechDirt - myself among them. Even the article's author, Nina Paley herself is one. There are a few more abolitionists commenting on her previous article: Even 'Free' Culture Supporters Sometimes Have Difficulty Living Up To Their Own Principles.
When you recognise that slavery is inherently wrong, you give up campaigning for reforms to provide slaves with better working conditions, nutrition, shelter, healthcare, retirement, etc. Just abolish it. There is no such thing as a good reason to suspend a man's liberty - however wealthy some may get through its exploitation.
See the article by Leonhard Dobusch: Reflections on Abolitionism: Copyright and Beyond.
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Re: Re: The conundrum
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Re: The conundrum
The -SA clause works even better. And it's Free Software equivalent has a 20-year track record.
Remember, CE is NOT a license, it's a mark. Used with Share Alike (copyleft) it achieves everything proponents of -NC claim they want, without inpinging on anyone's freedom. The -SA license is extremely powerful.
(And not just because my own choice of license is not "libre" enough for a few people, Nina included.)
Strange phrasing - not "libre" enough for me? That reads like you are taking this personally, which is unfortunate. You and I both know you don't need my approval, but we can still discuss ideas.
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Re: Re: The conundrum
The -SA clause works even better. And it's Free Software equivalent has a 20-year track record.
If a record company released something, for profit, under an -SA licence, and makes a huge amount of money without paying the artist, how does that help artists be less exploited? From their perspective, it's no different from the system we have now.
Sure, they wouldn't get to use the CE mark, but (for reasons I outlined above) that might not be enough.
There are a huge amount of "mights" and "maybes" in all our arguments, of course. I suspect the best solution won't present itself until all the CC licenses are near-universally accepted, and we can see how things shake out. Making CC licenses generally accepted - even the ones that might not be libre enough - should be the free culture's highest priority, IMHO. Not endorsing -NC licenses doesn't help, especially when they seem to be the ones favored the most by artists.
Now, you're just arguing for a different solution, and that doesn't hurt anyone. I'm just arguing for keeping the licensing ecosystem open, even to less-than-perfect licenses, so we can see which one achieves the best balance between everyone's rights and interests.
Strange phrasing - not "libre" enough for me? That reads like you are taking this personally, which is unfortunate.
Sorry, that's not what I meant. It was more a sort of caveat about my own motives. I know you're not attacking me personally. We're all just talkin' here.
Which is not to say I don't take the subject personally, of course. It's why I get so pissed off about the RIAA, USCG and Righthaven. If I have "enemies" in this fight, they are entities like those, not people like you.
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Re:
I was thinking of physical releases in that situation. The label would have a lot more money, to produce a lot more releases cheaper, without bearing any of the costs of production. It's the "Wal-Mart" effect.
But that's kind of an outdated example. Let's take licensing your music for a car commercial. Without some sort of -NC restriction (or a similar solution), the car company wouldn't need to spend a dime to use your music. From an artist's perspective, he or she has been exploited.
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Re: Re: Re: The conundrum
Record labels exploit artists through copyright by DENYING everyone the liberty to produce copies (including the artist), in order to enjoy the monopoly - being the only source of copies (to charge monopoly prices). Once signed, the artist cannot sell their own work - that is exploitation.
Labels do not exploit artists by having the liberty to produce copies of their work.
Exploitation is about getting people to work for nothing in return, or for far less than the free market value of their labour. Have you wondered why so many artists are considered lottery winners if they receive even 1% of the revenue the label obtains through sale of copies? Most artists see nothing (any advance is 'looked after' for them).
You should also ask why so many software engineers publish their software under a copyleft license and do not feel exploited by Microsoft consequently able to sell copies of their work for any amount they like.
If you would use CC-NC to suspend others' liberty to exchange their labour in a free market (to reserve that suspension for exploitation by a traditional publisher), then frankly, you shouldn't complain if you end up exploited by the publisher you eventually sell your copyright to (if they'd pay you anything for it, being devalued by your market saturation of free copies). If you prohibit anyone from using your work unless they do so unpaid, then you will see zero custom from those who might otherwise like to use your work in earning their own living.
Artists deserve to be able to exchange their labour for money, so it's really perverse that so many pay lip service to this principle with themselves in mind, but disagree in practice through their act of denying this liberty to others by using the CC-NC license.
If I print Nina Paley's cartoons on postcards and sell them, how am I exploiting her? If she'd used CC-NC I wouldn't use them, but because she doesn't and my postcards sell like hotcakes I'll be inclined to commission Nina to produce more cartoons for my cards.
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Re: Re:
Share Alike is like teflon to abusive exploitation. -NC is exactly what abusive exploiters want - a monopoly.
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corey lol
no corporate use
everyone else enjoy
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Re: Re: Re:
The commercial would have to be released as Share Alike. Is that going to happen? If it does, it would be a bigger victory than one artist getting a license fee.
Let's assume that it is released that way. That's not such a stretch, since I don't know of a single case where anyone was sued for remixing a commercial. (Exposure is the entire point of a commercial, and remixing helps that goal.)
In that case, the public would benefit, since it is allowed to do whatever it wants with the commercial. And in the medium-term, it would make CC licenses more acceptable, which (in theory) benefits artists.
But, let's say your artwork is used in a commercial, without permission or payment, and that commercial is itself released under an -SA license.
How does that stop you, as an artist, from being exploited commercially? In what way does that increase the chances that you will get paid for your work?
It may act as promotion, because it gets your art out to the public quicker. But that doesn't translate to more sales. Remember, we're in the realm of "CwF + RtB."
I can think of a lot of bands (perhaps even most) who will lose money if their music is featured in even one commercial. The Dead Kennedys circa 1988, for example. They had (have?) a staunch anti-corporate message, and that message was part of their "CwF" model. If any license allowed them to appear even once in any commercial context, they would lose half their fans.
So, in order to make our new commercial model work, we have to have a mechanism to prevent this from happening. And in these situations, the CE badge just wouldn't be good enough; you have to have a means to prevent this situation from happening at all. If we don't, then bands will be forced to reject CC/CA, so they can connect with fans. That's not a good idea.
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Re: Re: Re: Re:
You should be aware that even without copyright there is a moral right against an artist or their work being misrepresented, e.g. as falsely endorsing a product/religion/political party, etc.
Many artists would rightly be concerned at themselves or their work being misrepresented in adverts, so this is a poor example with which to focus on the economic meaning of commercial use (that NC excludes).
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Re: Re: Re: Re: Re:
Perhaps, but as far as I know there's no law on the books that recognizes this moral right. In theory, this is covered by copyright law. (Especially in other countries.)
The "attribution" requirement of CC does, in fact, make this moral right clear.
But I was talking about economic exploitation. One of the defenses for using unauthorized works is that the artist will actually make more money, because the use acts as promotion. That's often true, but it wouldn't be in this case. It's less about the moral right you're talking about, and more about the lack of economic gain that results.
Perhaps the example I gave was confusing. I was just trying to present a situation where the use would not increase demand for the work.
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Re: Re: Re: Re: The conundrum
The entire problem is that the difference between a "publisher" and one who wants to "exchange their labour in a free market" is often very hard to determine.
And who says I'm advocating "selling the copyright," or that I want to "reserve that suspension for exploitation by a traditional publisher"? Nowhere did I suggest that only one entity should be authorized. I'm all for abolishing the "assignment" of rights altogether, but that's a separate topic.
All I'm saying is that if someone makes a profit (publisher or not), and that profit is earned as a direct result of using my work, then I should have the option to be compensated. If not, then I should have the option to prevent them from using my work. (Whether I actually take that option is up to me.)
If they do not intend to make a profit, then I shouldn't even have that option. Neither should anyone else.
If you prohibit anyone from using your work unless they do so unpaid, then you will see zero custom from those who might otherwise like to use your work in earning their own living.
That's not necessarily true. Web designers buy Photoshop, recording engineers buy mixing boards, etc. Licensing or direct sales to businesses can be a pretty lucrative business model, and one that I do not want to take away from artists. Especially now that the sale of art to the public is rapidly becoming a dead end.
Now, there might be better business models out there. Nina is presenting one, but she's viewing it from a public rights perspective. From an artist's perspective, I remain skeptical.
Also, there is a difference between "unpaid" and "not for profit." The line between them is very fuzzy, however.
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Re: Re: Re: Re: Re: The conundrum
If you're worried about taking something away from artists you should learn from the experts - record labels.
The sale of copies has become a dead end. Fortunately, the sale of art direct to fans is beginning to see a resurgence.
If you wove a basket and sold it for $10, would you require a share of the profits if the purchaser then resold it for $50?
It's nice to be granted a monopoly so only you can keep on selling copies of your work. Some people can only sell their work once.
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Re: Re: Re: Re: Re: Re: The conundrum
I meant that most people who make money will be willing to buy the tools to do so.
Also, Adobe does sell the same software for different prices depending on use - student licenses, for example. But that's neither here nor there.
If you're worried about taking something away from artists you should learn from the experts - record labels.
From an artist's perspective, record labels would have more "rights" than they currently do. That's the heart of my objection, actually. Nina's system benefits the public, but it also gives more power to commercial enterprises than it does to the artists themselves. The balance is still off.
The sale of copies has become a dead end. Fortunately, the sale of art direct to fans is beginning to see a resurgence.
If you're talking about music, that's true. What about non-performance art? Photography, for example?
If you wove a basket and sold it for $10, would you require a share of the profits if the purchaser then resold it for $50?
No - but they would have to buy the basket for $10. They couldn't just steal it. (Hey, it's your example.)
It's nice to be granted a monopoly so only you can keep on selling copies of your work. Some people can only sell their work once.
Selling your work once is called "work for hire." In these cases, the artists don't earn royalties or hold the copyrights, so they couldn't use a CC license in the first place.
What we seem to be talking about is not being able to sell your work at all.
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Re: Re: Re: Re: Re: Re: Re: The conundrum
If I spend a day weaving a basket I've copied from an expert weaver, I have a right to sell my labour - without that expert having a monopoly that prevents copies being made of his baskets.
If I spend a day remixing a few videos I've found on YouTube, I have a right to sell my labour - without any monopoly having been granted to the producers of my source videos to prevent me.
So, I'm all for selling work, and I've got no problem with people making and selling copies.
The problem is that there's an 18th century privilege called copyright that scuppers all this - a now ineffective monopoly that makes people think they should be able to sell copies that cost next to nothing to make for the price of an hour's labour. A lucrative prospect, but achieved most unethically at the cost of everyone's cultural liberty.
The market for copies at inflated prices is over. The free market in intellectual work resumes.
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Re: Re: Re: Re: Re: Re: Re: Re: The conundrum
You know, I've been thinking about situations like this quite a bit. The issue here is not necessarily that the work is being used for profit, but that a derivative work is being used for profit.
So, say I release music as CC-BY-NC, but I do not place a "no derivatives" restriction on it, and I do not place a "share-alike" restriction on it.
In this case, it seems to me that people would not be allowed to use my works for profit, but it would allow them to use derivatives of my works for profit.
Am I wrong about this?
If I am right, doesn't this seem to be the most fair solution all around? People don't get to "steal" my content for profit, but if they transform it through their own labor, I have no right to demand a share of their fruits.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: The conundrum
So, this solution would enable artists to defend themselves against publishers and labels, but not against e.g. corporations who would include their works in advertisements without permission.
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Re: Re: what other options are there?
Still, I must be missing something because to use the mark properly doesn't seem to need anything more than sharing some revenue with at least one contributor. I'll have to look at the CE Mark's page again I guess. I figure what I'll do is find a way to express to a visitor what I share back with whom so as not to create any false impression.
And now to scroll up and find the link which I probably bookmarked ... and lost in a sea of bookmarks cuz I bookmark first and ask questions later. doh!
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thx
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