pragmatism over zeal
Let’s make the CC By-NC-SA versus First Sale battle more specific.
Jamie Boyle’s new book The Public Domain: Enclosing the Commons of the Mind
The book is also available for download. If I print out and bind this book - in other words, if I come to legally own a copy of the book - do I have the right to resell it for any amount of money I can get for it?
It’s the same book…
How about something else licensed CC By-NC-SA?
A short version, a long version, and a surprise.
The short version: who has precedence, the CC NC clause or the First Sale doctrine?
The long version: First, a little background on the First Sale doctrine from Wikipedia (normal caveats apply):
The first-sale doctrine is a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. That means that copyright holder’s rights to control the change of ownership of a particular copy end once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the “first sale rule” or “exhaustion rule”… In 1909 the codification originally applied to copies that had been sold (hence the “first sale doctrine”), but in the 1976 Act it was made to apply to any “owner” of a lawfully made copy or phonorecord (recorded music) regardless of whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded, or given away.
(For more detail, see this entry on copyright.gov.)
And now, a little background from the bottom of each and every Creative Commons license (for an example, see the bottom of http://creativecommons.org/licenses/by-nc-sa/3.0/):
Your fair dealing and other rights are in no way affected by the above.
To be more specific, from the Legal Code version of the license,
2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.
Clearly, Creative Commons does not mean for their licenses to interfere with the limitations on copyrights granted us elsewhere, like our rights under the First Sale Doctrine.
Now, let me try to string these beads together here.
Someone, say MIT OCW, grants me permission to make a copy of some of their materials subject to the terms of the CC By-NC-SA. Let’s say it’s a collection of biology video lectures from Eric Lander, who President-elect Obama has just named co-chair of the President’s Council of Advisors on Science and Technology (congrats!). I’ll burn these to DVD so that they won’t take up space on my hard drive, and use them as a free replacement for a textbook to study for the biology class I’m taking this term.
Now I find myself in possession of a copy of Prof. Lander’s materials, which I have obtained legally. When the semester is over, do I have First Sale rights to this copy of Prof. Lander’s work?
Let’s think about it in terms of textbooks. They are fully copyrighted. All rights reserved. At the beginning of the semester, I obtain a copy of the book through legal means. At the end of the semester, when I no longer want the textbook, First Sale means I am free to sell that copy of the textbook for whatever price I can get.
Now what about my DVD? (Remember, I didn’t buy a textbook for my class.) Having obtained this copy of Prof. Lander’s work through legal means, now that the semester is over, does First Sale mean I am free to sell my DVD? Can I sell this copy of an NC-licensed work?
If not, isn’t something very wrong?
If I can’t sell the DVD, it means that somehow the limitation on copyright that applies to an All Rights Reserved work does not equally limit the copyright of a Some Rights Reserved work. Shouldn’t the First Sale limitation that applies to All Rights Reserved works also apply to Some Rights Reserved works?
This question can be asked in a more basic way. When I download a video from MIT OCW, do I own that copy of the video? If so, it seems that First Sale limitations apply and I am free to later sell that copy.
If not, then I don’t actually own the copies I make of CC-licensed materials? If not, a CC license is actually a EULA or clickwrap license that gives me permission to use a copy but should make it clear (but doesn’t) that I don’t own the copy?
The surprise: Is the First Sale doctrine a hole in the NC clause big enough to drive a truck through? It may not be, but I would sure like for someone who knows more about the statute and the case law to explain to me why not.
Happy New Year!
What do you think about while you stare at the ceiling, unable to sleep?
Recently, I’ve been thinking a lot about license compatibility issues. Specifically, I’ve been wondering how I can communicate to people the difficulty copyleft causes for would-be remixers. Until you get knee-deep in it, you can’t really understand the pain. And how many people ever really get knee-deep in it?
So I wondered… how can I bring that pain to the common man? And in addition to “bringing the pain,” how can I effectively educate them about licensing compatibility issues and instruct them in the art of creating legal remixes?
My first attempt at an answer is OER Remix :: The Game. As I once read in the award statement for the 1st Annual Obfuscated Perl Contest Best of Show award in 1997, OER Remix :: The Game “takes special pains to cause special pain.”
I hope you find an opportunity to play it with a class, in a workshop, or with someone you love this New Year. Keep in mind that the card designs and rule sets are “early alpha” at this point, so your feedback will definitely be used and will be sincerely appreciated.
Happy New Year, everyone!
Still waiting for mine to arrive, but Geeks Bearing Gifts looks to be absolutely fabulous. Whether you like him or not, Ted Nelson is probably one of the most visionary people of our age. As I’ve written about in a number of places, his work on primedia, transclusion, and reuse generally is the foundation much of my own thinking is built upon. If only learning objects had been built on Ted’s way of thinking instead of object-oriented programming, we might be doing something useful with learning objects even now… /me looks wistfully into the distance… Hopefully it’s not too late for OERs (which are just learning objects with an open license) to learn the lessons of Ted’s visions.
I love that this is published through Lulu (as is the OER Handbook for Educators). Remind me again, who needs the mainstream publishers?
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… 
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