NC Isn’t the Problem, SA Is… Part Deux

In his commentary on CC’s new report on the state of OER licensing, Stephen finds an opportunity to express his continuing support for the noncommercial clause:

In the full report you find their recommendations, including machine readability of license terms, license standardization and license compatibility (which is once again essentially the recommendation that licensors drop the ‘non-commercial’ clause (p. 16). This gets tiresome. Proponents can recommend this until they’re blue in the face. They can disguise this ongoing campaign under the heading of ‘research studies’. But the fact remains, especially outside purely capitalist economies, people have an aversion to commercial use….

I appreciate that Stephen has strong feelings on this subject (more on that below). However, the license compatibility section of the report is very clear in stating that the ShareAlike clause is the root of the license compatibility problem – not the NC clause. I have written about this rather extensively in the past (e.g., see the original Noncommercial Isn’t the Problem, ShareAlike Is from July 2007). On page 14 of the CC Learn report:

It is important to note that any license that includes the “Share Alike” restriction is likely to raise compatibility problems. The “Share Alike” condition requires that adaptations based on resources under a “Share Alike” license also be licensed under essentially the same license. This often cannot be done….

By-SA can’t be recombined with By-NC-SA, neither By-SA nor By-NC-SA can be combined with the GFDL, and any public domain or CC By licensed resource remixed with By-SA, By-NC-SA, or GFDL licensed resources is forcibly converted to those terms (as part of the larger remix – the original remains unchanged, of course). In this sense of copyleft’s unyielding, unapologetic, impatient, forcible conversion approach to interacting with materials that use a kinder, gentler license, we may appropriately call copyleft clauses the “Spanish Inquisition of the open education movement.”

Now back to Stephen’s energetic support for the NC clause. I want to ask two questions.

First, what precisely is being defended and recommended? Neither CC as an organization nor Lessig himself are able to say definitively what the NC restriction prohibits. As I’ve made clear previously, CC’s own “Proposed Best Practice Guidelines To Clarify The Meaning Of ‘Noncommercial'” is absolutely orthogonal to MIT OCW’s interpretation of what NC means (see Creative Commons vs MIT OCW: Interpreting the Noncommercial Clause from Feb 2007). Whose interpretation would be upheld in court? And now CC is actually surveying the community to try to catalog the myriad, incompatible ways this term is understood by the millions of people who have used it (see Tell Creative Commons What NonCommercial Means from earlier this month).

In every technical sense, the NC clause as currently constituted is a disaster. Worse, it is a popular placebo. People think it is protecting their works from what they imagine “commercial use” to mean, but in point of fact there is no way of knowing whether a court would agree with their interpretation, and there is no canonical interpretation to fall back on. I’ve never been one to criticize NC on the grounds that it is inherently evil (as others have), but how can we recommend the NC clause when no one – including the license’s authors – know what protection it provides?

Second, I have never understood (and I really, deeply, sincerely do want to understand) Stephen’s line of argument describing how OERs licensed with, say, the CC By-SA license (lacking the NC clause), can be cordoned off by for-profit interests. The Open Learning pilot at BYU that will launch in January will be using the CC By-SA license. We own the copyrights on the material we will be sharing, which is why we can set the terms of the license they will be distributed under. There is nothing any corporation, entity, or individual can do to strip us of our rights, to prevent us from distributing our material, or to interfere with our provision of free educational materials to the world in any way. And any corporation, entity, or individual that would ever try to modify and then charge a fee for our materials is required by the SA clause on our materials to simultaneously freely license their derivatives under the same CC By-SA.

Where is the danger? No one can stop us from giving our material away for free (mu-ah-hah-hah! just try to stop us!), and no one downstream can ever change the terms of our license or the terms of the license of any derivatives of our materials. Where is the danger?

I promised myself I would never blog about this again… 🙂