Contra NC – Mostly

In this response I sample from Stephen’s latest contribution to our conversation about the noncommercial clause of CC licenses, Open Content, Enclosure and Conversion, simply because a complete line-by-line response would take too long. I will rely on Stephen to call me out if I have sampled in a manner that misrepresents him, which I have made an honest effort not to do. I use Stephen’s subheadings throughout to break up my response and help the reader find the corresponding material in Stephen’s original post.

Freedom

At the beginning of his post Stephen recaps Stallman’s four freedoms, and comments,

“Now it is evident that by content we don’t mean (exactly) ‘software’. So the freedoms are not an exact match, and as Stallman himself says, you can’t blindly generalize from software freedoms to other freedoms.”

I agree. This is why I began developing the notion of the 4Rs of open content. (These were first presented in the “Open Education License” draft back in 2007.) The 4Rs include the rights to:

• Reuse content verbatim / exactly as you find it
• Redistribute content to others
• Revise content to better suit your needs
• Remix content with other content to create new things

I will go into this in more detail later, on a new page on opencontent.org presenting these four points as my definition of openness (since others have taken the liberty to define the “open” in open content, I think I should be allowed a try as well as the person who coined the term). But I think talking about rights makes more sense than freedoms, since “rights” are the language of copyright and intellectual property law which, like it or not, is the context in which openness must position itself to be meaningful.

Stephen continues,

“Nonetheless, we can invoke the spirit of the four freedoms to come to some sort of understanding of the content regime we would like to foster: one in which we are able to access (consume?) the content, for any purpose, one in which the source (or encoding) of the content is accessible (ie., non-proprietary), one in which we can share content, and one in which we can modify the content.”

Again, I agree. We would like content that is open in the sense of the 4Rs and can pass a rudimentary ALMS analysis. ALMS analysis is the framework I’m developing around technical ease of exercising revise/remix rights. ALMS is an acronym for:

• Access to editing tools?
• Level of expertise required to revise or remix?
• Meaningfully editable?
• Self-sourced?

The ALMS framework first appeared in a lecture for my Open Education course that is viewable at http://openeducation.blip.tv/#1681281 where I referred to it as a SLAM analysis. Michael Feldstein recommended the more loving abbreviation “ALMS”. 4Rs+ALMS has turned out to be a reasonably useful analysis framework as demonstrated by Jared Stein’s Estimating “Reuse / Remix’ Value of 7 OER Projects and Aaron Johnson’s Reusability in the Land of OERs.

Point of View

Stephen continues with what may be the most useful contribution either of us has made to our very public, very lengthy conversation about the noncommercial clause:

For the sake of the current discussion, I would like to identify two major points of view:

• the content provider – that is, the person who current posseses the content, and would like to use or share it
• the content consumer, that is, the person who does not yet have the content in his or her possession, and who would like to access the content

This distinction is important, because there are two ways we can emphasize the impact of the four freedoms on content. The first emphasizes access, that is, that there ought not be any barriers to reading, running, or consuming the content. The second emphasizes use, that is, that there ought not be any limitation on how content is used.

One way of characterizing the point of disagreement is to characterize it as difference in point of view. Specifically, my own view involves an emphasis on access, such that content is not ‘free’ if there are conditions or constraints that prevent or impair one’s ability to read, run or consume content. However, Wiley’s view (from my perspective – he is free to characterize this differently) involves an emphasis on use, such that content is not ‘free’ if there are conditions or constraints that prevent or impair some use of content.

Both perspectives live happily together, except for one point of collision: the commercial use of content. Because, on the one hand, the commercial use of content (for example, offering it for sale) can create conditions or constraints that prevent or impair one’s ability to read, run or consume that content. And on the other hand, the constraint to non-commercial use of content creates conditions or constraints that prevent or impair some use of content, specifically, commercial use.

That said, each of these perspectives also includes a countervailing perspective. On the one hand, proponents of commercial content may argue that commercialization does not prevent access, because non-commercial sources of content remain available. And proponents of open access argue that the commercialization of content is not actually a ‘use’ of content, but rather, merely the enclosure of content behind a barrier or wall.

Again, I agree – Stephen and I are coming at the issue of noncommercial from different points of view. I tend to privilege the perspective of the users and the myriad unanticipated uses they may want to make of open content. But as I’ve grown a little older and watched years of my hard-fought, grant-funded projects grind to a personally painful halt as supporting resources have dried up, I’ve also become increasingly convinced that commercial considerations are critical to the long-term availability of open content.

Commercial Use: Characteristic Properties

Stephen continues,

In this this section I would like to argue for the possible contentious position that what we should want to characterize as ‘commercial use’ is not in fact a use of the resource at all, but rather, as suggested above, a practice of enclosing the resource…

Sharing constitutes ‘commercial use’ if and only if conditions are placed on access to the resource in such a way that access is possible only if the sharer receives compensation for having shared the resource.

In other words, commercial use isn’t actually ‘use’ of the resource at all, in any straightforward sense, but rather, is the enclosure of that resource, where the purpose of the enclosure is to provide some (financial) benefit to the provider.

Here, for the first time, I will disagree with Stephen. But first I will let Stephen disagree with himself. In listing examples of what he considers commercial use, Stephen includes “the placement of advertising on a resource.” The placement of ads on or near open content in no way restricts anyone’s access to the resource, and is therefore a clear violation of the “enclosure” definition of noncommercial.

As for my own disagreement with the enclosure definition of commercial use, many things one might want to do specifically to increase access to open content can’t happen because they are commercial uses, and NC prohibits them.

For example, say I wanted to cache terabytes of open content on hard drives and distribute these in bandwidth-poor areas. Or say I wanted to make print versions of open content for use in the same areas. To be able to engage in this activity I will need to purchase hard drives or paper and ink. I will need to pay to ship hard drives or books. Someone will have to do the downloading and cloning or print-formatting. Someone will have to distribute these materials onsite.

As the worst kind of one-off, photo-op activity, we might be able to find donors to pay for the hard drives, paper, ink, and shipping. We may even find local volunteers who will bike our materials around to the places they will do the most good. But if this access-increasing activity is to be more than a one-time event it must somehow pay for itself. There is not an endless supply of free hard drives, free paper, free ink, or free shipping. So engaging in these access-increasing activities year to year means charging someone a fee. And because many OpenCourseWares use noncommercial licenses, their content cannot be sustainably distributed at scale this way.

To take a concrete example, we can consider Widernet’s eGranary Digitial Library. Their site says:

The eGranary Digital Library provides millions of digital educational resources to institutions lacking adequate Internet access. Through a process of garnering permissions, copying Web sites, and delivering them to intranet Web servers INSIDE our partner institutions in developing countries, we deliver millions of multimedia documents that can be instantly accessed by patrons over their local area networks at no cost.

To do this, Widernet offers for sale a variety of products, including everything from a $750 750M hard drive filled with open content and other material to a multi-institution lab package that costs $86,000. Stephen must agree that this is a commercial use, as one has to “purchase a device,” in this case a hard drive or computer, to gain access to the open content. But no one can claim that this commercial use is enclosing or restricting access to open content.

Stephen continues,

From these considerations, the reader should be able to see plainly the basis for my advocacy of the non-commercial clause. From the perspective of the consumer, the placement of conditions on access creates a barrier to access, one that entails that the resource is no longer free.

If all commercial use were a case of enclosure, I would agree. But I believe I have shown above that it is not. Some commercial uses significantly improve access to open content but are unfortunately forced to ignore all NC licensed open content.

Sharing, Combining and Conversion

I will touch only briefly on Stephen’s aside into the world of SA licenses:

The Share-Alike license does nothing to prohibit an NC work from being used in conjuction with a non-NC work. For example, a page of readings provided to a student could link to one of my essays, licensed under CC-NC-By-SA and one of David Wiley’s, licensed under CC-By. There is nothing incompatible about the licenses, unless one wants to convert the NC content into commercial content.

Yes, linking to separately licensed material from a page is legal. Notice, that I can even link to CNN or the Globe and Mail from this openly licensed website even though these sites are fully and aggressively copyrighted. Going back to the 4Rs, the SA clause interferes with remix. I cannot remix MIT OCW with Wikipedia for reasons that have nothing to do with commercialization. I cannot remix them because their licenses demand that derivatives and remixes use EXACTLY the same license. There is no reference to commercial or noncommercial in CC’s SA clause or in GFDL’s copyleft clause, and there doesn’t need to be. The purpose of copyleft is to insure that derivatives (including remixes) are licensed with EXACTLY the same license. Helping users understanding the pain of this point is the design goal of the Remix Game.

In short, SA doesn’t prevent you from using NC content, it only prevents you from converting it into non-NC content through some process of combining or merging.

True – SA doesn’t prevent you from using (the 1st R) NC content. It prevents you from remixing it (the 4th R) with anything licensed with any of the other copyleft licenses (including other CC SA licenses). And it aggressively subsumes any content you remix with it that does not have a copyleft clause.

Stephen says, “And it is NC, not Share-Alike, that opponents really wish to suppress.” This is true only because the definitional problems with NC are so severe that they completely overshadow the 4th R remix problems created by SA, the way appendicitis would overshadow the flu.

Enclosure

Back to the NC discussion. Stephen offers his best explanation yet of how open content can be overcome by commercialized content. He begins with the following example:

Suppose a person, Fred, creates a resource called ‘XYZ’. And suppose Fred posts XYL on his own website and licenses it CC By-SA.

Cordoning can be created very simply. A third party, Omniplex, can copy Fred’s resource and place it on their own website. Omniplex then creates the cordoning by requiring that a person purchase a subscription to their website in order to view the resource. For clarity, we’ll call this new instance of the resource XYZ-c.

Now the response is very clear. It may be true that XYZ-c has been cordoned by Omniplex. But so long as XYZ is available on Fred’s website, anyone can access XYZ. So XYZ isn’t really cordoned off, just one instance of it is. And people who access the resource, on seeing the CC By-SA license, could take the cordoned version and place it on any other website. Right?

Quite so. But we must now understand, Omniplex’s biggest competition is now fred, the original source of XYZ in the first place. Anything that can be done to ensure that users access XYZ-c, and not XYZ, will be in Omniplex’s corporate interests. And, in fact, XYZ-c has an arsenal of resources at its disposal to ensure that this is the case.

Agreed. They have several tools they can use to fight Fred. But Fred has several tools he can use to fight back. For the comparison to be legitimate, we have to acknowledge that Fred will fight back. If Fred is just going to roll over then the discussion is completely uninteresting. Here is the (admittedly partial) list of tools Stephen lists at Ominplex’s displosal:

– a climate of litigation is created such that, only content from trusted corporations, such as Omniplex, can be ‘known’ to be copied legally, such that users no longer trust that they have the right to use Fred’s XYZ, but trust XYZ-c. Or Fred is required to license DRM software in order to ‘prove’ that the resouce is legitiomately distributed.

This is completely hypothetical. We might also argue that a climate of openness will be created, as HR 801 (the Conyers bill) dies in committee, HR 1464 (the OER Bill) passes, and OER provisions that we are working to get into stimulus language is approved, so that people develop a preference for open content.

– legal and other overheads can force Fred’s website off the air – for example, threats of legal action from Omniplex, threats of civil or criminal action on unrelated matters, lawsuits (justified or not) from anti filesharing agencies, DOS attacks, domain squatting, and more

Again, this is completely hypothetical. And even if these suits were to materialize, we could hypothetically expect them to get smacked down in the same way the RIAA’s suits are beginning to be now. The Rule 11 sanctions motion in UMG Recordings v. Lanzoni is one of the most enjoyable legal documents I’ve read in a long time. The way the RIAA dropped its case like a hot potato once the sanctions motion was introduced only made the reading more enjoyable. Domain squatting requires either something illegal to happen or for Fred to drop the ball on renewing his domain. DOS attacks are clearly illegal and are only temporary.

– SEO manipulation – Omniplex not only employs an aray of spammers to ensure premium placement for XYZ-c, these same tactics are used to push down Fred’s Google rank by discrediting him; Omnicorp also has the resources, where Fred does not, to purchase search engine placement

Omniplex will certainly be able to purchase ad placement and SEO services. But their SEO will only strengthen Fred’s original XYZ’s search ranking as the Attribution requirement of the Creative Commons license requires XYZ-c to link back to Fred’s original, and the consequent Google love strengthens Fred’s results position.

– exclusivity of market – in the same way you’ll never find free books in the bookstore, Omniplex would like to set up online markets where only XYZ-c, and never XYZ, is listed

I’m sure they would like to setup online markets where only XYZ-c is available. And, in fact, they may. But this market will be years late to the party where hundreds of online portals already aggregate open content. Omniplex will here have to compete against the proliferating number of sites that serve as gateways to open resources like OER Commons, Academic Earth, DiscoverEd, OCWFinder, and OER Recommender (that already have PageRanks as high as 6)- not to mention the Creative Commons searches offered directly by Google and Yahoo.

– formal requirement – tuition required to enrol in an accredited course needed for a degree pays, in part, for instances of XYZ-c. Or, students are required to purchase XYZ-c from an ‘official’ marketplace (so-called to prevent ‘piracy’)

We already require students to purchase books from the university bookstore and know that this “requirement” doesn’t work.

– proprietary platform – in some environment – Amazon Kindle, say – only XYZ-c is available; XYZ is not available, because the owners of the proprietary platform will not license Fred to place it there

While it may not be available for purchase from the Kindle store, Amazon already provides ways to legally and easily get other content onto their device. And if they were to stop supporting this service, there is admittedly very little Fred can do. You may never be able to read his stuff directly on the Kindle 3 – so you’ll have to read it on one of twenty other competing e-book platforms.

I’m delighted to finally understand where Stephen is coming from with this line of argument. However, personally, the arguments about how content can be enclosed and cordoned off just feel unconvincing to me. They either depend too much on hypothetical scenarios (things that “might” happen in the future) or fail to account for Fred having any gumption at all. He goes on to apply the same arguments to BYU’s Open Learning initiative, but additional responses to these hypothetical scenarios (such as Google deciding that BYU is a Google competitor, and therefore artificially punishing BYU’s search results rankings) would largely repeat what I’ve already said.

Stephen summarizes,

It is, quite frankly, beyond me how anyone can look at all comprehensively at the state of commercialism and the internet and expect any other outcome. Anyone who expects any other outcome is living in fantasyland. There is no domain, where commercial activity was allowed without restraint, where the commercializers did not take over and ultimately wreck the domain. (emphasis in original)

Again, I believe there is an internal contradiction in the post. The post’s opening example of free software (like Apache) seems to argue against this contention in the domain of software. Dozens of commercial webservers have been developed to compete with Apache, but Apache 0wns the webserver space.

Looking around us today, we can see where unrestrained commercialism has wreaked wreck and ruin everywhere. However, rather than this ruining foretelling the disappearance of open content, the recent economic unpleasantness seems to be a herald for open content. HR 1464 is one very concrete example of the way rampant, uncontrolled commercialism has created incredible opportunities for open content.

Grounds For Agreement

Stephen locates grounds for our agreement about open content:

– first, it doesn’t bother me at all is a person or an organization makes money by adding value to work that I (or anyone else has created. This is, indeed, the foundation of the productive economy, the idea that, by producing value, a person is rewarded

– but second, it does bother me if a person or organization makes money by subtracting value from work that I (or anyone else) has produced, by limiting access to it, by making it more difficult to obtain, by casting doubt or legal concerns about its use

I agree wholeheartedly. I suppose another way to characterize our disagreement is by analogy to the Betamax case. While the VCR is certainly capable of helping people do bad things (like infringe on others’ copyrights), the court felt that because the device also enabled substantial non-infringing uses that we shouldn’t throw the baby out with the bath water – and consequently, we got the VCR.

I think we can look at the noncommercial clause in the same way. There are certainly mean, nasty things people may try to do with content that lacks the protection the NC license is supposed to provide (though definitional problems make me wonder whether it provides any protection at all). But there are other, good, wholesome, valuable things people can only do with content that lacks an NC in its license. It seems to me advocating for the NC clause in all cases (or the vast majority of instances, as I believe Stephen is doing) is to disallow highly desirable activities in order to disallow some highly undesirable activities. In other words, it seems to me that advocating the NC for the reasons Stephen lists lands the advocate on the wrong side of the Betamax case.

Stephen points to the original Open Publication License that I released in 1999. Part of the creation of that license was a conversation with Tim O’Reilly which, to be brief, went something like this:

“What would it take for you to feel comfortable openly licensing some of your books?”

“I would want to be sure that I didn’t spend all my effort / resource publishing a book that the next publisher down the road could reprint for $5 less with no upfront investment.”

“That makes sense – if you don’t have that kind of protection you won’t be around long enough to publish many books.”

And so the OPL was written with an option 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.” By exactly this same reasoning, Flat World Knowledge uses the NC clause on the books it publishes, like Exploring Business.

For commercial entities who produce their own content and want to share it, and whose continued existence depends on their ability to protect themselves against being undercut by another commercial entity, I think the NC clause can make sense. I guess to me the very odd beast that is NC only makes sense in the case of the very odd beast that is the commercial content producer who wants to openly license their content.

What Next?

Stephen wraps up by saying that he thinks Creative Commons is about to outlive its usefulness. I’m inclined to disagree for one specific reason. He says:

I think now that Wiley’s approach of creating a separate license wlll be better, in the long run, than following (and being bound by) the Creative Commons license.

This is a reference to the “Open Education License” I had drafted. But this license draft became obsolete when Creative Commons released their CC Zero, as again they implemented in a stronger legal manner what I had attempted in my IANAL manner.

In general I don’t think new licenses are a bad thing as long as they do NOT contain copyleft clauses. The proliferation of licenses with copyleft clauses would be a complete disaster for the open content and open education. Imagine a world in which their were 10 popular copyleft licenses for open content, and that adoption of the licenses was even distributed. You would never be able to remix more than 10% of the total pool of open educational resources with one another. As a general rule, to the extent that copyleft open content licenses proliferate your ability to exercise your 4th R right (remix) is undermined, and quickly approaches zero. Unless the open content field is going to reject copyleft licenses altogether, we should continue to use the CC copyleft licenses so that proliferation does not become an even larger problem.

Stephen closes by stating generally what he wants from “free content.” From open content I want unrestricted 4R rights and content that scores well on an ALMS analysis.

Many thanks to Stephen for his continued passion, thoughtfulness, and patience with me. And apologies, Stephen, that this response was so long in coming. I look forward to your next statement in our multiyear conversation.