<nettime> Benjamin Mako Hill on Creative Commons

["jl @ cc" <jl@creativecommons.pl>]

Mako Hill (Debian, Ubuntu and other projects) posted today rather 
lenghty and - in my view - well reasoned article about some CC weaknesses.
Read all of it below or visit his website http://mako.cc/copyrighteous/. 
I think this is going to be a widely distributed and discussed, and will 
make strong impact both within and outside CC.
Since i agree with him i would like also to start public discussion 
about setting up some sort of new freedom movement on top of CC 
licenses. Please, share your view about it. Why this should (or 
shoudn't) be done, how this should be done, and who is going to join.
This is not calling for schism. I think that there is enough space for 
such a movement, and we can all cooperate in a spirit of understanding.

greetings
Jaroslaw Lipszyc

-

Towards a Standard of Freedom: Creative Commons and the Free Software 
Movement
Author: 	Benjamin Mako Hill
Contact: 	mako@atdot.cc
Date: 	Fri, 29 Jul 2005 13:39:49 -0400
Copyright: 	Creative Commons ShareAlike License

Creative Commons (CC) advocates, like Lawrence Lessig, have become 
fixtures on panels discussing Free and Open Source Software (FOSS) [1]. 
Frequently, they are seen as representative of the growing movement to 
translate the principles of Free Software to the world beyond code. 
Creative Commons advocates, directors, and supporters increasingly 
describe the project as an attempt to apply the principles of Free 
Software, appropriately adapted, to less technical forms of creative 
expressions like music, writing, and the visual arts.

Comparisons between CC and Free Software are hardly coincidental. The CC 
website proudly describes the inspiration for the project as, in part, 
"the Free Software Foundation's GNU General Public License (GNU GPL)." 
Many of the minds behind CC (Lawrence Lessig, James Boyle, and others) 
made important contributions to legal and philosophical discussions of 
the Free Software movement before starting CC.

However, while the GNU GPL is FOSS's most famous legal artifact, Free 
Software existed as a concept, as a movement, as code, and as licenses 
before the GPL. As the GPL is revised and replaced [2], Free Software 
remains unchanged. There are many free software licenses and most look 
little like the GPL.

Free Software's fundamental document is Richard Stallman's Free Software 
Definitions (FSD) [3]. At its core, the FSD lists four freedoms:

         * The freedom to run the program, for any purpose;
         * The freedom to study how the program works, and adapt it to 
your needs;
         * The freedom to redistribute copies so you can help your neighbor;
         * The freedom to improve the program, and release your 
improvements to the public, so that the whole community benefits;

When a piece of software's license provides these freedoms, the software 
is considered free software. When a piece of software's license does 
not, it is not free. A requirement for attribution does not violate the 
four freedoms; hence, a license requiring attribution can be free. A 
non-commercial use clause restricts the first freedom; as a result, 
licenses barring commercial use are considered non-free -- for better or 
for worse. After these fundamental freedoms are satisfied, FOSS is 
license agnostic.

Free software advocates have been able to use the free software 
definition as the rallying point for a powerful social movement. Free 
software, like the concept of freedom in any freedom movement, is 
something that one can demand, something that one can protest for, and 
something that one can work toward. Working toward these goals, Free and 
Open Source Software movements have created the GNU/Linux operating 
system and billions of lines of freely available computer code.

For the CC founders and many of CC's advocates, FOSS's success is a 
source of inspiration. However, despite CC's stated desire to learn from 
and build upon the example of the free software movement, CC sets no 
defined limits and promises no freedoms, no rights, and no fixed 
qualities. Free software's success is built upon an ethical position. CC 
sets no such standard.

At the core of most CC licenses are a hodge-podge of pick-and-choose 
(and often incompatible) features that can include prohibitions on 
commercial use, the requirement to release and redistribute derivative 
works freely, the requirement to retain attribution, and a blanket ban 
on derivative versions altogether. The only quality common to all of 
these licenses was that verbatim copies would always be distributable 
non-commercially. In other words, while works under CC licenses may be 
licensed under any number of terms, all works allowed the non-commercial 
copying of unmodified versions without permission.

A new license, the CC "Sampling License" or "Recombo" license -- created 
in association with the band Negativland the Brazilian music living 
legend (and Minister of Culture) Gilberto Gil -- prohibits even verbatim 
distribution while allowing for commercial and non-commercial sampling. 
Another new license allows a for a broad range of freedoms -- but only 
for those living in the developing world.

It is important to note that every CC license is aimed at a particular 
problem and addresses a particular need. A blanket restriction on 
commercial use and derivative works opens the door to many of the most 
widespread models for financial sustainability in the art and culture 
industries today. The risks of lawsuits over sampling and the onerous 
process of requesting permission has a real silencing effect that the 
Recombo license is intended to address. The Developing Nations license 
addresses a real global imbalance in the way international IP is 
structured. Each new license exists for a good reason. But this is not 
the model that has made Free Software successful

Creative Commons licenses are designed to give artists choice. Lessig 
personally describes how Creative Commons, "gives creators the freedom 
to choose how their works are used." This is not freedom in the sense 
that the term is used in Free Software.

Until relatively recently, CC stood for, and could act as a nexus for a 
social movement focused on the requirement for verbatim non-commercial 
use of artistic works. A low bar in the minds of some, especially in 
comparison to Free Software, but a de facto bar nonetheless. The new 
Recombo and Developing Nations licenses remove even that. While Free 
software has succeeded by building a social movement for the idea of 
freedom, CC refuses to set any such limit.

Instead, CC's inability to represent even an minimal attachment to any 
defined spirit of sharing is apparent each time someone approaches the 
CC board with a real problem and an interest in distributing their work 
under a license that is more restrictive than the most restrictive CC 
license but also less restrictive than the status quo.

Had CC followed a model similar to that of Free Software, they would 
have drawn a line in the sand. "This is a Commons film. That film is 
not." It would have sent a clear message that making a CC document is 
more difficult than convincing the CC board to add another license to 
the CC website. By drawing this line, CC would be taking the risk that 
not as many individuals would be able or willing to use CC licenses and 
that some injustices and imbalances might not be addressed by their 
project. Non-participation, even en-mass, was a risk Richard Stallman 
was willing to take in the pursuit of more freedom for software. 
Ultimately, users of the GNU/Linux operating system created by the 
social movement he initiated have his stubbornness to thank for the 
consistent level of software freedom they enjoy.

To be sure, many programmers and software companies are uncomfortable 
with the freedoms required by the FSD. Programmers are welcome to 
release applications under a license that prohibits terrorists, 
fascists, or pacifists from using their software but their software 
won't be free. There are very good and thoughtfully considered reasons 
for each freedom in the FSD; there may also be very good and 
thoughtfully considered reasons for choosing not to use them. Free 
Software draws a line and leaves the final judgment calls up to the 
developers applying the licenses and the users using the software.

Not every programmer has to write free software. Not every programmer 
does. But if coders want to call their project "Free Software" or "Open 
Source," they must pass the bar set in the FSD and OSD. If a programmer 
wants their software included in Debian, listed in the Free Software 
Directory, or supported by SourceForge, Free Software's core freedoms 
must exist for their users. As a result, few coders write "almost free" 
software today while, proportionately, many more did two decades ago. 
With Creative Commons there is no bar and no essential freedom. As a 
social movement, CC has failed to take positions and set goals in the 
ways that made free software successful.

By no means is CC a bad thing--this article is distributed under a CC 
license. Every CC license clearly describes a right that cannot be taken 
for granted in contemporary copyright. With licenses that declare an 
author's intentions, the need for lawyers and permission-asking is 
significantly minimized. CC licenses are easy to understand and easy to 
apply. But by failing to take any firm ethical position and draw any 
line in the sand, CC is a missed opportunity.

Because CC has the support of influential intellectuals, and commands 
high profile institutional support, the creators of CC have an 
opportunity to define a movement for the production of content in what 
they thought was a better, more "free," more "open," or more "common" 
manner. They have not.

When asked at the World Summit on the Information Society about 
non-commercial use clauses, Lessig said that he thought they were 
overused and frequently a bad idea. For whatever reasons, 3/4 of 
CC-licensed works prohibit commercial use [4]. Lessig provided licenses 
and he hoped most creators' conservatism and fears would not get the 
better of them. Apparently, they did; artistic works under these 
licenses are less accessible to a large number of creators.

Perhaps a literary or musical work can be free and open and restrict 
commercial use. Perhaps it can't. Inspired by the Free and Open Source 
Software movement, one of the finest collections of legal and 
philosophical minds critical of contemporary intellectual property 
policy had the opportunity, foresight, and institutional and grassroots 
support to weigh in on a set of important issues -- on either side. They 
did not. To this day, no widely discussed -- much less widely accepted 
-- definition of free, open, or common content exists.

This article is not an attempt to criticize the presence of 
non-commercial use clauses, or any of the other clauses, in Creative 
Commons' licenses. Instead it is a criticism of the fact that there are 
no defined criteria by which any clauses can be categorically blocked. 
It is a criticism of the fact that there is no base level of freedom 
that every Creative Commons license must provide.

Creative Commons's website reads:

     Too often the debate over creative control tends to the extremes. 
At one pole is a vision of total control -- a world in which every last 
use of a work is regulated and in which "all rights reserved" (and then 
some) is the norm. At the other end is a vision of anarchy -- a world in 
which creators enjoy a wide range of freedom but are left vulnerable to 
exploitation. Balance, compromise, and moderation -- once the driving 
forces of a copyright system that valued innovation and protection 
equally -- have become endangered species.

CC's goal to escape a world of "all rights reserved" is laudable but 
they fail to describe what it will be replaced with except to say it 
will be better. While something slightly better is surely desirable, it 
might also be too little. Balance, compromise and moderation are 
certainly admirable and worthwhile goals; but undefined, unlimited, and 
unchecked, conservatism risks reducing CC's concept of balance toward 
little more than "slightly better than the status quo."

While CC's licenses are novel and effective tools, CC's "freedom of 
choice" is hardly new; it forms the foundation upon which copyright and 
all copyright licensing schemes work. It bears little resemblance, in 
scope, extent, or philosophical basis, to the Freedoms at the core of 
the Free Software movement. Lessig's cries for "free culture" are not 
accompanied by a description of what freedoms -- of use, of 
distribution, or of modification -- free culture will provide.

CC has replaced what could have been a call for a world where "essential 
rights are unreservable" with the relatively hollow call for "some 
rights reserved." If the Free Software example is representative of how 
things might have been, the total amount of freedom the consumers of 
creative works enjoy in the future may be the price paid for CC's 
popularity.

It is not too late to discuss which rights should be unreservable in an 
era of free information. When we have defined free information in terms 
of essential freedoms, Creative Commons will have provided us with the 
licenses through which to build this movement.

[1]	The Free and Open Source Software movements are parallel movements 
with a complex relationship and history outside the scope of this essay. 
When discussing software, licenses, and development communities, the 
terms are usually synonymous. When discussing the motivation, 
philosophy, and politics behind the the production of this software, the 
terms vary wildly. As to the nature of the distinction, an inadequate 
but useful distinction can be drawn: Free Software is a social movement; 
Open Source is a development methodology. For the sake of this paper I 
err on the side of overusing Free Software but in many cases, especially 
when discussing inspiration by Free Software, the Free/Open Source split 
is hardly clean.

[2]	The current version of the GPL is the second version. A third 
version is currently being worked on by the Free Software Foundation.

[3]	The Open Source Definition (OSD) was a verbatim copy of the Debian 
Free Software Guidelines (DFSG) that has diverged slightly over time -- 
a checklist of qualities useful in determining compliance to the letter 
and spirit of the FSD. When the FSD is mentioned in this piece, it in 
almost all cases be substituted for either the OSD or the DFSG.

[4]	Raw statistics of web links to the different licenses are as good an 
indicator as we have of the licenses' popularity. They are available at 
http://lists.ibiblio.org/pipermail/cc-fr/2005-February/000295.html and 
at other places.

This work is licensed under the Creative Commons ShareAlike License. To 
view a copy of this license, visit 
http://creativecommons.org/licenses/sa/1.0/ or send a letter to Creative 
Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.


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