The FWK Licensing Model

Since the discussion last week throughout the media generated so much interest (especially the story from Ben – who I respect a great deal – on Slashdot), some words on the FWK licensing model seem appropriate.

The short version: FWK textbooks will be licensed CC By-NC-SA Plus.

The long version:

Historical Lessons Of The OPL
Once upon a time (a decade now!) I collaborated with several folks on the Open Publication License. Many of the concerns collaborator Tim O’Reilly originally had all those years ago are still relevant now. The first has to do with author incentives, the second with the sustainability of the publishing operation. They’re actually easier to explain in the other order, though.

Publisher A makes a significant investment in a book, including finding authors, upfront payments to authors, content editing, content layout, and marketing (among other costs). Why would Publisher A make all this investment and then openly license their book when nothing prevents Publisher B from undercutting them with a cheaper version of the book in which they didn’t have to invest anything? Obviously, this could only happen a handful of times before Publisher A would lose the financial capacity to contribute open content to the world, as ‘lots of money would go out and only a little would come in.’ (In other words, it would be like a grant-funded project, where you work and work and eventually run out of money and have to shut things down.)

Financial incentives for authors also become a large problem when Publisher B can undercut Publisher A, because the author has entered into an agreement with Publisher A that says they will receive a portion of the receipts for sales of their book. However, when Publisher B steps in and undercuts Publisher A, the author receives no portion of the receipts on Publisher B’s sales. This, obviously, provides less of a financial incentive to the author to produce additional open content.

These concerns led us, back in 98-99, to create OPL option B, which is the ancestor of the NC clause in today’s CC licenses:

B. To prohibit any publication of this work or derivative works in whole or in part in standard (paper) book form for commercial purposes unless prior permission is obtained from the copyright holder.

(For those following along at home, note that OPL Option B only prohibits commercial use in print form, not all commercial uses. The CC NC clause is much broader in that it precludes all commercial uses.)

O’Reilly went on to publish several books with the OPL and Option B, including the book version of Eric Raymond’s The Cathedral and The Bazaar (Eric also collaborated on the license), which is available online for free. I published my own book The Instructional Use of Learning Objects (which is available online for free) with the OPL and Option B. There are several examples we can point to where this approach has worked very well. OPL + Option B is equivalent in its high-level intent to the CC By-NC-SA.

What FWK Is Trying To Do
Now, you may argue that authors don’t need financial incentives to write books and that the world doesn’t need publishers to distribute books. You may also argue that we don’t need books at all, or universities for that matter. If you want to make these arguments, you may, but I won’t engage in them.

If we want to improve learning ~today~, we have to meet learners where they are ~today~. And today and for the foreseeable future the overwhelming majority of learners will be going to schools and universities where their teachers will adopt textbooks based on things like the name recognition of the author(s), the quality of the textbook, supporting instructional materials like test item banks and PPT notes, and the availability (and marketing!) of review copies.

Very few faculty members would give greater weight to the “openness” of a textbook than they would to its quality (and if they did, they would be doing their students a disservice). Students deserve the very best quality materials available, and faculty deserve the very best instructional support materials available. Simply producing open textbooks isn’t enough; we have to produce absolutely top-quality textbooks and supporting materials that faculty would select on their own merits – regardless of their open status.

Now, having said that, there are some additional, very practical benefits of an open textbook for the faculty member who has to make the adoption decision. For example, when the license and the technology allow the faculty member to remove chapters from the book, change the order of chapters in the book, or even edit chapters in the book directly (e.g., adding locally relevant examples) BEFORE her/his students ever see the books online or in print, this gives the faculty member much greater control over the instructional experience. Most faculty members couldn’t care less about “open” for openness sake, but give them greater control over the instructional experience, and suddenly openness is translated into a concrete benefit – a difference beyond “openness for openness sake.”

And, of course, open textbooks are a miracle for students as they drastically increase students’ access to materials online (the online version of the text is 100% complete, and sometimes better than the printed version due to embedded videos and interactives) and drastically increase the affordability of printed versions of the books.

CC Plus
Now, what’s this “Plus” in our license? If you’re not familiar with CC Plus, the CC Wiki says:

CC+ is CC license + Another agreement.

It is NOT a new license, but a facilitation of morePermissions beyond ANY standard CC licenses.

The Plus in our CC By-NC-SA Plus will indeed be More Permissions – it will grant blanket permissions for anyone and everyone to make Commercial Use of FWK-published textbook materials in the context of the FWK Marketplace. The Marketplace will be an area of the FWK site where people can post and sell their own study guides, audio chapters, flash cards, videos, case studies, and other study materials related to FWK textbooks at whatever price they set (of course, they can alternately choose to openly license the things they put in the Marketplace, too). The Marketplace will be an “eBay for study materials,” and like eBay when somone sells material through the Marketplace, a small portion of the sale will come back to FWK and be shared with the textbook author whose work has been derived from or augmented by the new material.

Pre-Response to Stephen
Stephen is fond of criticizing me because I advocate CC licenses that eschew the NonCommercial clause. He recently suggested that my anti-NC perspective is actually a self-serving one, geared to help me achieve fame, fortune, and world domination by appropriating and selling other people’s material via FWK. This is so absurd it’s not even worth rebutting. Iterating Toward Openness readers can make their own judgments of my character.

I’m not sure where Stephen gets the idea that I make “assertions that everyone should use licenses that allow commercial use” (emphasis in original). I have certainly written about the technical difficulties I see with the NC. But rather than demanding that people stop using it, well over a year ago I wrote:

Nowhere have I said that the NC clause is evil, or that it should be done away with. I am by no means on a mission to destroy the NC clause. The NC clause is terribly important and I believe we desperately need it. However, it is in desperate need of clarification before it can become the innovation it was intended to be. Please, someone in a position to do so, fix NC.

I have also written at length about why institutions choose the NC clause, and why the free culture zealots should refrain from criticizing them. (It pains me to no end that I have to say “We should try to create a culture of tolerance in the open education world.”)

Sustainability is a very different thing for institutions of higher education. I see no sustainability argument for the use of the NC clause in the higher education context (the primary context in which I try to – very gently – discourage the use of the NC clause), but FWK is in a very different situation – FWK doesn’t have the benefit of being supported by tax-payers or a multi-billion dollar endowment. So while while I will continue to kindly discourage the use of the NC clause by universities, the sustainability context of private organizations like FWK or record labels like Magnatune is very different, and use of the NC clause here is completely appropriate.

Response to Ben
In his Slashdot post, Ben points out a problem with the CC By-NC-SA:

Mashups and customizations are encouraged, but the NC license is incompatible with strong copyleft licenses such as the GFDL used by Wikipedia.

In my response on the post, I completely agree that this is a problem. However, the problem is much larger than it appears as framed by Ben:

Ben makes an excellent point in saying that “the NC license is incompatible with strong copyleft licenses such as the GFDL used by Wikipedia,” because this is true. And the Wikipedia’s GFDL is incompatible with the CC By-SA license used by Wikieducator. And Wikieducator’s CC By-SA license is incompatible with the CC By-NC-SA used by MIT OpenCourseWare. And MIT OCW’s CC By-NC-SA is incompatible with GFDL used by Wikiversity. And Wikiversity’s GFDL is incompatible with the CC By-SA licensed images on Flickr. The higher-level point is that “copyleft” clauses (which require that derivatives be licensed with ~exactly~ the same license) are the biggest legal problem with open textbooks and open educational resources generally. Every copylefted open educational resource is incompatible with every other copylefted open educational resource with a different license.

Every “strong copyleft” license is incompatible with every other, so I don’t think Ben’s criticism applies to the NC clause – it is a criticism of the idea of strong copyleft and the current context of license proliferation. I’ve written about the sad state of current affairs previously in OER Nebula and Galaxies and Noncommercial Isn’t the Problem, ShareAlike Is. Take special note of the graphic toward the bottom of the latter, in which it is demonstrated that when you table out CC’s 10 licenses in a 10×10 grid, there are only 33 little smiley faces indicating that the licenses are compatible for remixing.

Flat World Knowledge will be licensing it’s first books CC By-NC-SA Plus, with copyright held by the authors. Despite technical difficulties with the NC clause, and remixing difficulties created by strong copyleft statements like the SA clause, CC By-NC-SA Plus is still far and away the best license for what FWK is trying to do. What would a superior alternative be? A one-off boutique license that further isolates FWK content from remixing? I don’t think so.

Closing Thoughts
To summarize, there are huge problems with the textbook industry right now. I mean, how often to your customers band together to raise awareness about the problems in your market? FWK isn’t doing open textbooks because we think things should be open on principle – although we’re all huge fans of openness. We’re doing open textbooks because they provide the best, most pragmatic, most effective response to the problems in the market – particularly the crises of access and affordability.

Openness isn’t a cult religion to be followed blindly to death or bankruptcy. Openness is a path to very practical solutions to very hard problems, like access and affordability.