The Inertia of Bad Behavior: Still Misunderstanding NC

Stephen provides an “I told you so” link to this post, A Troubling Result From Publishing Open Access Articles With CC-BY. He continues the claim he has been making for some time that these “problems” would not occur if authors published under a CC BY-NC-SA license instead of the CC BY license.

A careful reading of the post he links to, however, shows that this is completely wrong. The problems described in the post are the result of two issues:

  • Reusers of CC BY licensed research articles are not obeying the terms of the open license, and
  • There is some confusion regarding who should pursue legal action against those who are not obeying the terms of the license.

Tell me, now, how would choosing a different CC license solve either of these issues? How does adding the NC or SA clauses magically either (1) correct user behavior or (2) identify who should pursue legal remedies against those misbehaving users? Put simply: it doesn’t. Reusers of CC BY-NC-SA licensed articles would likely still violate the terms of the license, and individual rights holders still wouldn’t know where to turn for a legal remedy.

There’s a certain inertia to bad behavior. Unpunished, it does not tend to change. Applying additional rules which will also go unenforced (e.g., choosing a more restrictive license) will certainly not change behavior.

If it is true that, as Christina writes, “it’s too much to ask for individual authors to take legal action,” and if you believe that legal remedies are the only effective remedies, then those authors who are truly disturbed by the problems associated with misbehaving reusers need to turn over their copyrights to an organization big enough to pursue license violations. Using a more restrictive license certainly does not solve the fundamental problem.

However, there are a range of extra-legal actions that individuals could initiate that might also impact these bad behaviors. Social media campaigns against violators, for example, might go a long way toward improving the behavior of bad actors. Come on people – get creative. But whatever you do, don’t go placing additional restrictions on your research articles when those restrictions will only negatively impact the behavior of good actors and will not positively impact the behavior of bad actors. That’s a net loss for everyone.

Comments on this entry are closed.

  • joshuagay

    A note to all of David’s readers. I have helped run several successful social media campaigns against bad actors in the FLOSS space. If anybody here chooses CC BY or CC BY SA over NC or ND licensed works and wants help running social media campaigns against those violating their license, I am glad to offer my services free of charge. As the Licensing & Compliance Manager for the Free Software Foundation, I also have a fair amount of experience writing compliance letters; and if you would prefer a non-public (and arguably more polite) approach to achieving compliance, I am happy to help you write a letter or to write one on your behalf for you. Contact me at joshuagay@gmail.com.

    Sincerely,

    Josh

    • Björn Brembs

      Wow, Josh, that’s a fantastic offer. I have been contacted by the publisher (Apple) and they seem amenable to information from the researchers/authors. In fact, they told me they read these blog posts and use the information there to improve their business practices (FWIW).

  • Thanks, David, for this great clarification of the actual issue. A number of people commented that they’d choose a CC-BY-NC license for their work as a result of this issue, but I don’t see that solving the problem at all.

    I only went for the legal option because, frankly, I am a complete novice at all this, and I thought that when licenses were violated, that is what you’re supposed to do! But if different tactics are equally effective, then that’s fantastic. And thank you to Joshua, below, for offering his help! That’s a great avenue for anyone running into this sort of issue (I haven’t, personally (yet?)).

    My only worry about social media campaigns is getting to enough people so they don’t buy the books that compile otherwise openly accessible works. Is it enough if those of us in the “open” community realize these are bad actors, to get them to stop? Can a social media campaign reach enough of the public to really cut into the bottom line of such publishers? I am not expressing skepticism here, these are genuinely questions, because again, I am new to all this!

  • Heather Morrison

    If you want to encourage derivatives, planning social media campaigns against “bad actors” who may well have a different interpretation of what constitutes appropriate behavior with respect to derivatives will not, in my opinion, help your cause.

    To go back to Rosie Redfield’s example, I would describe this as the creation of derivatives for commercial purposes. From my perspective, if authors do not wish this to happen, it is far more ethical to so say in the first place with appropriate licensing than to wait to see what happens and use legal or social media means to remedy the problem later on.

    Consider, for example, whether social media persecution is a tool that we want people to engage in. You might think you have excellent reasons to do this, but think about how others might interpret when this is appropriate. Think about school bullying, for example.

  • Mike Taylor

    “Don’t go placing additional restrictions on your research articles when those restrictions will only negatively impact the behavior of good actors and will not positively impact the behavior of bad actors.”

    Brilliantly stated, and right on target.

  • David, you write:

    “A careful reading of the post he links to, however, shows that this
    is completely wrong. The problems described in the post are the result
    of two issues: (1) Reusers of CC BY licensed research articles are not obeying the terms of the open license, and (2) There is some confusion regarding who should pursue legal action against those who are not obeying the terms of the license.”

    I’m not addressing (2) at all, save to observe that if it is a person pursuing legal action, they will most likely be crushed by a corporation. I don’t think there’s any dispute there.

    With respect to (1) you do not state exactly what “terms of the open license” are being violated. I argue “none” – which of course is my point, and leads to the “I told you so”. But what terms do you think might be being violated? Reading the original post offers several possibilities:

    – the suggestion that ‘By’ requires that the publisher be named (which in this case might be PLOS or whatever). But if you read https://creativecommons.org/licenses/by/3.0/legalcode section 4.b you see the wording of ‘and/or’ is being used, which has the logical status of ‘OR’ (as opposed to XOR, or exclusive OR). That means the condition is satisfied if ANY ONE of the disjuncts is satisfied. The author is named, and hence the disjunct is satisfied. So it’s not this.

    – the suggestion that the reprinted should have puublished the CC license URL, as indicated in section 4.a of the same license, where it says, “You must include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform.” This one is a bit trickier. CC-by is not viral; there is no ‘share alike’ clause attached. So presumably there is no requirement to license the reprinted version as CC-By. The wording of 4.a seems to suggest that the CC-by license *is* viral, “You may not offer or impose any terms
    on the Work that restrict the terms of this License or
    the ability of the recipient of the Work to exercise the
    rights granted to that recipient under the terms of the
    License.”

    Now if you want the basis of your response to me to be that CC-by is viral, or that CC-by is the same as CC-by-SA that’s fine, but I think the statement of that argument should be clearer (minimally, the statement of that argument should exist).

    – the suggestion that the use violates some additional license terms imposed by PLOS. But the document cited http://www.plos.org/about/open-access/license/ is not actually a ‘PLOS license’, it is a page that is ‘about’ the CC-by license, and could hardly be taken to define it. The BioMed Central license https://www.biomedcentral.com/authors/license isn’t a CC license and thus outside the domain of this discussion.

    Given all this, it is reasonable to believe that the reprinters thought they were working within the limitations of the CC-by license, that they were IN FACT working within the bounds of that license, and that therefore they were not, as you suggest, “not obeying the terms of the open license.”

    Maybe you meant something different, but it would be necessary for you to at least state what it was in order for me to evaluate the claim.

    The second part of the post (presumably still showing I am ‘completely wrong’) asks, “How does adding the NC or SA clauses magically either (1) correct user
    behavior or (2) identify who should pursue legal remedies against those
    misbehaving users?”

    I do not suggest that adding the ‘NC’ clause serves to identify who should pursue legal action, so any discussion of (2) is irrelevant. The NC cause does not suggest who should take legal action (though common sense would suggest that it is the copyright owner who should take legal action).

    With respect to (1), I actually *did* offer an argument, but it is not restated not refuted here. I argued (and maintain here) that the addition of the ‘NC’ clause creates risk. True, it doesn’t prevent bad behaviour on the part of publishers. But it creates the greater possibility of a lawsuit if the publisher reuses the material, because the publisher is more clearly violating the license by offering the previously free material available for commercial sale for material gain.

    This argument may not be persuasive to you; I recognize that. But when I am called ‘completely wrong’ I think minimally there’s an onus to acknowledge that I at least made the argument, and offer some sort of token refutation.