I don’t want to say “this is exactly what I meant,” but, this is exactly what I meant!. And it’s why I use the NC clause in Creative Commons. e-century reports: “One of the major reasons for this change was because some companies are trying to archive the articles published by us for pure commercial purpose – they will ‘lock up’ all those articles on their websites and ask readers to pay to access them. This is obviously not right, and against our intention to keep all articles openly accessible to all readers, no matter where they are archived.” So, don’t tell me any more that this won’t happen. It does.

Yes, Stephen, it happens. But who cares? There is still a free copy available, and anyone who wants to find it can. When I Google for one of the articles, Google will show me multiple results. I’ll click on one, and maybe it will be behind a paywall. So I’ll go back to Google and click on another result. Then I’ll read it for free. Or maybe the first one I click on will be free. Or maybe I’ll just quit using the default Google search and start making my queries through the advanced search interface so that I only find freely available CC licensed material in the first place.

What you’re describing seems to be an information literacy problem, not a licensing problem. It appears to be an extension of the “tax on uneducated people” argument. By that argument, we’d need to ban a variety things ranging from selling lotteries to selling cigarettes to selling printed copies of public domain books. And maybe we should, because we could argue that people who buy these things ought to know better, and that we have an obligation to protect the uninformed from their own poor choices (in this case by using the NC clause). Because there are a variety of other scenarios in which the NC clause precludes access, we can’t universally say that using NC promotes access better than not using NC. We can only universally say that it protects the unenlightened from themselves.

Maybe we should modify the old saying as follows: Fool me into paying for openly licensed content once, shame on you. Fool me into paying for openly licensed content twice, shame on me.

I guess I could bring myself to care if you said “I use NC because I want to prevent people from being exploited,” because I can also care about that. But I don’t think that’s your point. Am I wrong?

Most frequently, great advances come not in creating brand new capabilities, but in greatly simplifying our ability to perform tasks we were already capable of completing. We could already plow the field before the tractor. We could already cut the grass before the lawnmower. We could already copy books before the printing press. We could already kill each other before the gun. We could already travel from city to city before the automobile. We could already travel from continent to continent before the airplane. We could already multiply and divide numbers before the calculator. We could already type dissertations before the word processor. We could already write computer programs before the IDE. We could already send letters before email. We could already share pictures with family members before Flickr. We could already keep up with friends before Facebook… The length of this list of examples is only limited by the amount of time one spends making it.

And so it is that Joe Clark completely misses the point in his reading of John Hilton’s First Monday article From PDF to MP3. The core of Clark’s complaint is:

The article attempts to demonstrate the usefulness of Creative Commons licensing in the creation of alternate formats – and fails…. Nothing was specially enabled by Creative Commons…. Everything creators of derivative versions did they could have done without Creative Commons licensing just by asking for permission.

And so I add to the list above, ‘We could already acquire rights to produce derivative works before Creative Commons.’ By logically connecting Creative Commons to the list of other innovations in the category “changes things I could only do tediously, slowly, and expensively before into things I can do easily, quickly, and inexpensively now,” Clark’s critique only reflects poorly on itself. (Why is it that people who don’t want to share insist on criticizing people who do want to? Is it guilt?)

As I’ve said before, the primary purpose of open licenses is to remove friction from the system – to make it smooth, easy, instantaneous, and free to acquire permissions to make use of work that people choose to share. And yes, open licenses are a huge innovation on par with the airplane or the calculator.

HAVING SAID THAT…

Tony Karrer’s recent article on the Failure of Creative Commons Licenses demonstrates one of the ways in which CC licenses fail to reduce friction, and therefore fail to accomplish their primary purpose.

Readers of my blog know that while some individuals are morally opposed to the Noncommercial clause in CC licenses, I have no such moral objection. My objections to the NC clause have always been technical in nature. My concern continues to be that the no one (including Creative Commons) knows what the clause means, what it permits, or what it prohibits (and this despite the extremely poorly named Defining noncommercial study in which CC asked the community to tell them what they think noncommercial means).

Hundreds if not thousands of blog posts have been written on this topic. Tony’s earlier post asking if a for-profit company can include NC licensed content in internal training for its own employees stumbles into a quagmire several years old. He sent his question to the cc-community mailing list and was almost deafened by the silence. Only one person offered an answer, and that answer included:

Contact the copyright holder to verify that… their understanding of what the license permits and your understanding of what the license permits are congruent

In other words, the NC CC licenses make something I could only do tediously, slowly, and expensively before equally tedious, slow, and expensive to do now.

In one of my many posts on this topic over the years, in 2007 I wrote:

The lack of a clear, official definition of NC transports us backwards in time to a day when site owners were required to write their own terms of use, and when site users were required to read them in detail. Surely this isn’t innovation…. The NC clause is suppose to remove friction from the system, but does not. It only (rather deviously) appears to do so. Until the definition is clarified we are no better off than we were before – we all still have to write our own terms of use. And our users are even worse off than before – what appears to be a coherent, simple message conveyed by a small green icon at the bottom of a million web sites is really either pages of legal explanation granting differing rights on each site or the worst kind of vagueness in the cases where no extra legal explanation is given.

Which leads me to ponder the following scenario:

1. Two websites publish materials under the BY-NC-SA license.
2. Each site includes a “What we mean by noncommercial” page in order to try to reduce friction.
3. The first site defines noncommercial as a function of the user. “Are you an individual, library, school, or not-for-profit? Then you meet our definition of noncommercial.” (e.g., the Magnatune interpretation.)
4. The second site defines noncommercial as a function of the use. “As long as you don’t try to make money from our content, you’re cool regardless of what kind of entity you are” (e.g., the MIT OCW interpretation.)

MIT OCW and Magnatune are (deservedly) two of the most popular collections of CC-licensed material around. Here’s the question: even though they are both licensed BY-NC-SA, can I really remix MIT OCW material with Magnatune material, since they interpret NC differently and therefore aren’t really the same license? Whose definition would I follow, since they contradict each other? (MIT OCW explicitly says “Determination of commercial vs. non-commercial purpose is based on the use, not the user.”)

Individually, MIT OCW and Magnatune have done “the right thing” ™ by defining clearly what they mean by NC, thereby reducing friction for users. The remix question is separate from the friction question, but it should still bother us nonetheless. Do we really expect people to abide by the terms of our licenses or not? If we’re not clear about what those terms are, what do we expect to get in terms of user behavior? Likely garbage in, garbage out.

Jeepers this thing is a mess. I’d almost managed to put it out of my mind until Tony brought it up again.

In the empirical portion of the study, content creators and content users were asked to judge a number of specific use cases (i.e., determine whether or not the uses they describe are commercial) in the following five categories:

• The user/you would make money from the use of the work
• The work would be used online and advertisements would appear around it
• The work would be used on behalf of an organization
• The work would be used for a charitable purpose/social good
• Your work would be used by/you would use the work as an individual

The CC report is 255 pages long. Allow me to summarize (realizing that others will summarize in different manners). Simplifying a bit (at some cost but with some value), when the majority (more than 50%) of respondents categorized a specific use case as “commercial,” I have categorized that use case as commercial in the chart below. This chart reformats data presented in Appendix 5.6 – 62 (page 198 of the pdf), which I would encourage you to view for yourself.

According to the majority of the community:

• All uses where money is made are commercial.
• All uses where advertisements are involved are commercial.
• The overwhelming majority of uses made by or on behalf of an organization are commercial (8/9).
• The majority of uses made for a charitable purpose or a social good are commercial (7/11).
• Less than half of uses made by an individual are commercial (3/8).

Clearly, the community defines commercial use by the nature of the use and not by the nature of the user. According to the community, non-profits, charitable organizations, and individuals are all capable of making commercial uses. At a high level, the community has sided with MIT OCW’s view of noncommercial and rejected the original CC draft definition (which was based on the nature of the user).

Definition by use rather than by user significantly complicates interpretation. For example, I have a friend who believes that all individual uses are noncommercial and all institutional uses are commercial. It would have been wonderfully simple if the community had agreed with him. Instead, we have the community telling us that the majority of these specific use cases involving charitable uses are commercial and almost half of individual use cases are commercial as well. We also have MIT OCW completely disagreeing with the community in the case of organizations, telling us it’s perfectly fine to use their NC material inside an organization, which is just another elephant-sized indicator of the complete mess we find ourselves in with regard to this license term.

Please keep in mind that this survey presents the legal opinions of people with very little understanding of the law. Granted, they are the people ostensibly following the law, but so are the mp3 downloaders, and video remixers, and others.

What are we supposed to gain from reading this survey? I really can’t say. So why did I spend all this time writing this blog 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.

The lower court had found that redistributing software in violation of the terms of a free software license could constitute a breach of contract, but was not copyright infringement. The difference matters because copyright law affords much stronger remedies against infringement than does contract law. If allowed to stand, the decision could have neutered popular copyleft licenses such as the GPL and Creative Commons licenses. The district court decision was overturned on Wednesday by the United States Court of Appeals for the Federal Circuit.

Maybe this will finally quiet the “confused” people out there who think that those of us who support open licenses are anti-copyright. As pointed out by this case, open licenses depend heavily on copyright law to provide “incentives” for users to comply with the license and (as a last resort) enforcement mechanisms.

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.

Some, disliking the business practices of commercial software suppliers and publishing houses, want to replace copyright with open licences. Some want to allow anyone to profit from the work of others without even telling them they are doing this. Despite the resistance to copyright by some open licence supporters, open licences are legal tools that use copyright law to achieve their objectives. It follows that for understanding open licences legal analysis is at least as important as ideological commitment.

The implication of the first sentence is that some people who support open licenses want to do away with copyright. I’ve met hundreds of people who support and even evangelize the use of open licenses, but I’ve never met one who thinks that it should be legally impossible for authors to protect their creative works.

It is true that many supporters of open licenses think that there are fundamental problems with copyright law that need to be fixed. Many feel that the Berne Convention requirements for the automatic copyrighting of all creative works the moment they are fixed in ‘tangible’ form should be reversed. When you count ~all~ the “creative works” in the world – including things like children’s crayon drawings – it is clear that the vast majority of creators never intend to protect or commercialize their works. So the majority of creators are burdened for the sake of the minority of creators. If my creative works weren’t automatically, unavoidably “protected,” I would be able to share them as part of the public domain without needing to resort to legal machinations. It says something disappointing about our civilization that hoarding is the assumption and sharing is assumed so rare that a lawyer’s help is needed to do it.

However, the more subtle point that I believe the rest of the paragraph is trying to make is that without copyright protection open licenses are meaningless. Licenses only work in the context of copyright law. Saying that you want to replace copyright law with open licenses is like saying you want to replace a fish tank with a fish. The fish can’t live without the tank, and open licenses don’t function outside the context of copyright law. I wish more people understood this point… Perhaps OER supporters who are serious about these issues will sign up for UOC’s Master in International Copyright law…

Even though I can’t understand what he’s been saying to me for the last year, he still pushes me around mentally and makes me think and write. You simply have to love someone who does that for you. Commenting on Jennifer’s blog, Stephen asks:

Why does David Wiley think that open education is commercial education? It is not enough to say that the licenses are incompatible – this is only a problem for commercial exploiters of free content.

This comment is completely incomprehensible to me. When a group of learners who are in no way affiliated with a company or any other for-profit organization are prevented from remixing OERs by the copyleft provisions in the GFDL and the CC-By-SA or the CC-By-NC-SA, how is it that this is only a problem for commercial exploiters of open content? Stephen, please explain to me! I really do want to understand! Are you saying it’s ok for these learners to violate the license terms, because no one will care since they’re not making any money? Commercial or not, the copyleft clauses prohibit literally anyone and everyone from remixing GFDL materials with any CC materials licensed with the SA clause. This is why no one, commercial entity or not, can remix Wikipedia content with MIT OCW content. So how is this incompatibility only a problem for “commercial exploiters,” aka companies? Because kids won’t ever want to remix materials? Or because kids would never want to remix Wikipedia materials (GFDL) with MIT OCW materials (CC-By-NC-SA)? Or MIT OCW materials (CC-By-NC-SA) with Wikieducator materials (CC-By-SA)? Or Wikpedia materials (GFDL) with Wikieducator materials (CC-By-SA)? Too bad if anyone wants to, because they can’t. So Stephen’s post on Jennifer’s blog befuddles me.

And, while I’m asking Stephen to explain things to me, why is it that he seems to think “open” should really mean “closed?” In other words, why is it that “open” should mean “open to everyone except for some people” – specifically, companies? Why should we exclude anyone from what we’re trying to do? Stephen has talked before at length about how corporate participation in open education will be worse than no participation from corporations at all. Of course, this hasn’t been the case for RedHat and Linux, and it won’t be the case for open content and commercial publishers who get involved in it. But let me give an example. A while back, when I wrote about how the ambiguities and vagaries of the NC clause were scaring people away, Stephen responded:

Now you might say that I am actually limiting distribution by taking this attitude [of not caring if the NC clause scares away some people who might use open content]. Because, after all, I am lowering the number of people who could be distributing material. Because you support both free and commercial access, while I only support free access.

If this were simply a case of adding the two together, I would agree. But I would argue that the commercial use of content actually impairs the free use of that content. In other words, the access allowed by a commercial plus free access is less than the access allowed by free access alone.

There are many reasons for this.

And now let me take his points in turn:

• The commercial sector, for example, lobbies against funding for the free sector (cf. the lobby against the BBC, for example) as ‘unfair competition’.
• The commercial sector creates and lobbies for restrictions and conditions that make the distribution of free assets difficult – mandatory DRM standards, for example, accessibility requirements, or in our field, IMS specifications.

These statements are probably both very true. But neither of these lobbying activities will increase or decrease in correlation to commercial companies’ abilities to distribute open content, and so these are completely irrelevant.

• The commercial sector limits use of content by trademarking it or patenting it (for example, the animal images used on O’Reilly books are public domain, but only O’Reilly may use them on tech books, at least according to O’Reilly).

A little background in responding to this point. You may be surprised to hear this – but I am not anti-copyright; that is, I do not believe we should abolish copyright. I believe the incentive created by a limited-term monopoly on copying and distributing encourages lots of people to do things they would never otherwise do. I am, of course, a strong advocate of a significantly shortened term of copyright. I don’t know how you continue to encourage Walt Disney to produce creative works 50 years after he has passed away.

Stephen’s point about trademark pulling things out of the public domain is partly true. To briefly quote a nice paper on the subject by Zorich, “trademark does not grant an exclusive monopoly on use; instead, it grants the trademark holder the right to use the trademarked item as a means of distinguishing its goods or services in a commercial marketplace.” So O’Reilly protecting the use of public domain images on the cover of a technology book doesn’t prevent you or I from using them on our website, putting them on T-shirts, or doing anything else with them. It only prevents you and I from using them on the cover of our own technology books, which we would likely do to try to confuse the public about the origin of the books. So the trademarking of a public domain work in a specific market (like technology books) does prohibit one specific use of the public domain work. But it does not prohibit any others. And frankly, I don’t have a problem with that. I think it falls in the incentive category I mentioned in the previous paragraph. O’Reilly puts a lot of brain power and resources into their marketing. Why should I be able to come along and both (a) confuse the consumer and (b) ruin their reputation with a shoddy book that looks like they produced it?

There are three possible choices when it comes to using a public domain work as a symbol for your product – whether for-profit or otherwise (let’s keep in mind that not-for-profits trademark slogans and artwork and other things as well). One – no one should ever be allowed to do so, regardless of what benefit might be realized. Two – first person to do so should receive some protection against masqueraders. Three – there should be no restrictions at all with regard to this specific use of public domain works, regardless of what harm may occur. Stephen will likely disagree, but I believe situation Two (which happens to be the current situation) is the most reasonable. Situation one completely restricts uses of this sort (and thereby makes all public domain works operationally equivalent to fully copyrighted works), and situation three likely leads to complete chaos.

I’m knowingly delaying a response on the patent issue as I fully admit

First, the OEL is not meant to be “the license” that replaces all other licenses. It is meant to push the edge of the current licensing continuum out further for people who want to be more open than popular licenses allow. Current licenses listed from most restrictive to least restrictive would be: CC By-NC-ND, CC By-NC-SA, CC-By-ND, CC By-NC, CC By-SA, GFDL, CC By, (OEL goes here). The OEL is meant to push the right side of this list further out for the people who see problems with existing licenses, want a license that imposes no restrictions, and is internationally viable. I’ve already written at length about why the Public Domain is impossible to put at the end of this list. If CC By is as open as you’re comfortable being, then the answer to the question “Why not CC By?” is “Just use CC By.”

Second, there is a major mechanical problem with the way CC By is used by people. The Attribution requirement of all CC licenses, including CC By, states “You must attribute the work in the manner specified by the author or licensor.” Now, I ask you – have you ever seen a page with a CC license that specifies how the work should be attributed? USU OCW and all other eduCommons using schools include citation instructions at the bottom of every page (example), as does Connexions (example), but these are literally the only sites I am aware of that do. So for those 40 million resources in the world that use a CC license, I would estimate that 99.some percent of them make it impossible for you to comply with their own license, because they do not provide you with citation instructions as their own license requires them to. A more devious / damning – and completely plausible – way of looking at these 39 million some resources is: (1) the license says I have to attribute as specified by the author, (2) the author doesn’t specify, so (3) I don’t have to attribute. (I contacted CC about this problem a year ago and suggested a series of easy to use Attribution plugins (a default and several other standard citation forms) to fix this problem, but there was no follow-up from the student at the Berkman Center I was referred to, and the idea is still just floating out there. This could be fixed rather easily if anyone really thought it was a problem.)

Third, in the preface to the draft I described a family of scenarios in which the requirement for Attribution is effectively a form of discrimination against people and groups of people. Many readers responded by saying something along the lines of “people who can’t get along with others just need to get over it.” This seems like an extraordinarily naive response. For example, let’s consider the realm of Chinese language open educational resources, which are much more scarce than English OERs. Imagine that the National Taiwan University were to release some open content with an Attribution requirement, specified as follows:

This material was originally create by the National Taiwan University, located in the legitimate and independent Republic of China.

With this attribution requirement, we can imagine it being impossible for Chinese state-run universities to use these materials because of the requirement to refer to the ROC as legitimate and independent. There are an almost infinite number of perfectly plausible examples like this, in which political and other messages could be embedded in Attribution requirements, in which the requirement would effectively discriminate against a person or group of persons. There are a number of other examples in which simple cross-group hatred would turn the attribution requirement into an instrument of discrimination. One of my good friends (he knows who he is) will remind me that these examples are all hypothetical today. But that doesn’t mean that we shouldn’t begin architecting contingencies today.

Fourth and finally, in the context of open education we don’t need an attribution requirement embedded in the license. We have a citation culture. We also have anti-plagiarism policies embedded in our institutions and an anti-plagiarism ethic spread throughout academia generally. And yes, plagiarism is grounds for civil law suits when it comes down to it. Think of Bacon, Shakespeare, Twain, and others whose writings are in the public domain. Do we fail to cite them appropriately since there is no legal requirement for us to do so? Do we plagiarize them because they’re dead and there are no heirs left to chase us down? No. Attribution is a social norm in the academy (as well as a matter of policy), and we can depend on this social norm and existing policies to encourage proper citation. We don’t need to create a legal Trojan Horse by which we can force political and other statements onto people as a matter of “attribution.”

So, while I am arguing that there are a number of very real problems with the Attribution requirement itself and the way it is used incorrectly by the overwhelming majority of its adopters, I am not arguing that we should do away with it. We need to realize that no license will be perfect (the OEL included), and that there is a great value in having easy to use open content licenses that cover a spectrum of restrictions (from many to none).

Today I take the lid off the next most difficult thing I’ve done. As I describe below, I hate the idea of license proliferation. However, I feel that there are several convincing arguments that we need a new license at this point in the history of open content, and specifically in the history of open education. After providing the arguments and my thoughts below, you’ll find a draft of the first license issued by OpenContent in eight years – the Open Education License.

The Four Rs of Open Content

When I began promoting the idea of open content almost 10 years ago, there were four main types of activity I was interested in promoting (although it took me some time to get to the point where I could articulate them clearly). The four main types of activity enabled by open content can be summarized as “the four Rs”:

• Reuse – Use the work verbatim, just exactly as you found it
• Revise – Alter or transform the work so that it better meets your needs
• Remix – Combine the (verbatim or altered) work with other works to better meet your needs
• Redistribute – Share the verbatim work, the reworked work, or the remixed work with others

Notice how each of the first three Rs encompasses those that came before it. Reusing involves copying, displaying, performing, and making other uses of a work just as you found it. Reworking involves altering or transforming content, which one would only do if afterward they would be able to reuse the derivative work. Remixing involves creating a mashup of several works – some of which will be reworked as part of the remixing process – which one would only do if afterward they would be able to reuse the remix. (A “remix” in which no reworking is done is an anthology (a collection of simple reuses) and not particularly interesting for the purposes of this discussion.)

In the learning objects literature and elsewhere, endless problems have been caused by the fact that people say “reuse” when they actually mean “rework” or “remix,” or some combination of the first three Rs. This is a classic problem of imprecision; of talking fast and loose. Add to this difficulty the fact that each of these three Rs thrives under different conditions, and you’ve got a recipe for general confusion.

For example, take “rework.” This R deals with creating a derivative by altering or adapting a work. Traditionally licenses have tried to strengthen the rework activity through the “copyleft” mechanism. Copyleft is an idea borrowed directly from the world of free or open source software, requiring that derivative works be licensed using the exact same license as the original. This insures that when derivatives are created from a copylefted open content work, those children and grandchildren works remain open content, licensed using exactly the same license as the original.

However, while copyleft strictly requires that all future generations of derivative works be free and open, copyleft significantly hinders the remix activity. For example, conservative estimates say that there are approximately 40 million creative works that are currently licensed using a Creative Commons license. About half of these use the ShareAlike clause (Creative Commons’ copyleft clause). Of those creative works that use SA, about two thirds (~13 million) use By-NC-SA, while the other third (~7 million) uses By-SA. While statistics on GFDL adoption are harder to come by, because Wikipedia and the other Wikimedia projects use the GFDL we can safely estimate at least 7 million works are licensed using the GFDL (which contains its own copyleft clause). Since half of all CC licensed materials are licensed using a copyleft clause and all GFDL licensed materials are licensed using a copyleft clause, this means that over half of the world’s open content is copylefted. And while the CC and GFDL copyleft clauses guarantee that all derivative works will be “open,” they also guarantee that they can never be used in remixes with the majority of other copylefted works. You can’t remix a GFDL work with a By-NC-SA work when the licenses require that the child be licensed exactly as the parent. Each parent had one and only one license – which license would the derivative use? It’s just not possible to legally remix these materials; copyleft prevents this remixing.

While promoting rework at the expense of remix – in other words, taking the copyleft approach – is fine for software, it is problematic for content and extremely problematic for education. As educators, we are always remixing materials for use in our classrooms both in the “real” world and online. Your mileage may vary, but over my last 15 years of teaching I would estimate that my remixing activities outnumber my reworking activities 10:1 or more. If other teachers are like me in this regard, then, copyleft is a huge problem for open education. Like the American football coach who tries to use his successful offensive and defensive strategies with a European football (or soccer) team, the open source advocate who brings the successful idea of copyleft into the world of open content will eventually be disappointed. The primary activity of the open source software developer is reworking; the primary activity of the open educator is remixing. Different activities require different supporting strategies to be successful.

If we are serious about wanting the freedom to legally and frictionlessly remix educational materials, we have one of two choices: either ignore the OpenCourseWares, Wikipedia, and other copylefted open content of the world (i.e., work only with open content that isn’t copylefted), or forcibly constrain ourselves to one subset of the “open” content universe. Do you see the irony?

About the Copyleft and Attribution Restrictions

Some supporters of copyleft licenses like CC By-SA and the GFDL claim that they give users the ability to use and reuse open content with “no restrictions.” Obviously, requirements for attribution and copylefting of derivatives are very real restrictions that should not be overlooked. While supporters claim that “some restrictions are necessary to protect freedom,” and that requirements for attribution and copylefting fall into this category, both these restrictions can be problematic both practically and philosophically. I’ve spent a significant amount of time above describing why this is the case for the copyleft restriction.

When you contemplate the different cultures and cultural values in the world, it isn’t hard to imagine scenarios in which the requirement for attribution would prevent appropriate uses of open content. One need only contemplate any of the areas of enduring unrest in the world to understand that the requirement to attribute a reuse or rework of content to a Sunni or Shia author, for example, will prevent members of the other group from using the content. Sadly, over a dozen other examples of this kind (Israeli / Palestinian, etc.) could be given. It quickly becomes clear that the requirement to attribute the original author can be a subtle but no less real way of discriminating against persons or groups. (If the accusation of being an instrument of discrimination is not convincing enough to some open source advocates, this situation also puts the seemingly innocuous requirement for attribution at odds with one of the basic premises of the open source definition.) I believe it is absolutely crucial that we do everything we can to live up to the ideals of nondiscrimination expressed in the definition, our institutions, and civilization generally.

Why Not a Public Domain Dedication?

If the appropriate goal for a license is, as it appears, to make open content available without any restrictions, why not simply dedicate the works in question to the public domain? There are a number of problems with a public domain dedication (like that offered by Creative Commons). First, dedicating a work to the public domain is a significantly more involved process than licensing a work. While Creative Commons is rightly famous for how easy their license selection technology and little green buttons make licensing your work with a CC license, the public domain dedication is much more complicated and includes a number of steps, including making a request for Creative Commons to send you an email regarding your intent to place a work in the public domain. This rigamarole is not the fault of Creative Commons; they have simplified as much as possible the process of putting a work in the public domain in the US.

But secondly, and more importantly, it may be impossible under the law in some jurisdictions to place a work in the public domain. For example, in the EU authors have certain rights that cannot be contracted or licensed away, making it impossible for an author to legally relinquish all rights to a work (or put it in the public domain). Creative Commons also recognizes this problem with the statement that their public domain dedication “may not be valid outside of the United States.” Hence, a public domain dedication is not an internationally viable mechanism for open content.

About the Four Rs and the Four Freedoms

I hate definitions and taxonomies outside the hard sciences. I hate them particularly because I have been involved in the political contests of creating and perpetuating them – specifically, definitions and taxonomies of “learning objects.” Whose definition of learning object is best? Whose taxonomy is best? These are largely meaningless political battles I left behind many years ago.

It therefore surprises no one more than it surprised me that I felt the need to list and explicate the Four Rs, especially in the context of the existing “Four Freedoms.” While the Four Freedoms have their roots in free or open source software, they have been discussed in the context of open content as well. Wikipedia’s Terry Foote summarized the freedoms at our 2005 Open Education Conference as:

• Freedom to copy
• Freedom to modify
• Freedom to redistribute
• Freedom to redistribute modified versions

Freedom 1 is analogous to the first R, reuse. Freedoms 3 and 4 are analogous to the final R, redistribute. Freedom 2 is either analogous to the second R, rework, or is an amalgamation of the second and third Rs, rework and remix. In either case, the Four Freedoms do not distinguish sufficiently between the rework and remix activities. This leads to the problems described above in which rework is considered and supported at the cost of remix. These are distinct activities that require different environmental conditions.

The Four Freedoms as listed by Freedom Defined also fail to make this distinction:

• the freedom to use the work and enjoy the benefits of using it
• the freedom to study the work and to apply knowledge acquired from it
• the freedom to make and redistribute copies, in whole or in part, of the information or expression
• the freedom to make changes and improvements, and to distribute derivative works

While the “father knows best” approach of copyleft places only incentive obstacles in the path of would-be creators of derivative works (by stripping them of the ability to choose how to license their derivative works), copyleft places legal obstacles in the path of would be remixers. This problem is difficult to see through the imprecision of the way the Four Freedoms deals with “modify,” and this is one reason I felt justified in listing and explaining the Four Rs.

Purpose of the New License

The purpose of the new license is to create a way for people to license their works in such a way that:

• applying the license is easy for authors and understanding the license is easy for users,
• engaging in any of the four Rs of open content can occur in a completely frictionless manner,
• the license imposes no restrictions on licensees, decreasing the chances of accidental discrimination against persons or groups, and
• remixing is well supported, so that licensed content is legally remixable with any other content to which the remixer has rights, whether (c), CC, GFDL, or differently licensed, decreasing license incompatibility problems.

The Approach

In the context of historical approaches to using copyright law against itself, the new license takes the approach of granting licensees all the rights for which they would need a license under current, applicable law.

Credit Where Credit is Due

The language of this license draft borrows heavily from the Creative Commons licenses, which only seems appropriate. Adopters of the new license will also be able to use Creative Commons’ RDF metadata in their documents to describe to Google, Yahoo!, and others what rights are associated with their works, as follows:

<rdf :RDF xmlns=”http://creativecommons.org/ns#”
xmlns:dc=”http://purl.org/dc/elements/1.1/”
xmlns:rdf=”http://www.w3.org/1999/02/22-rdf-syntax-ns#”>
<license rdf:about=”http://opencontent.org/licenses/oel/1.0/”>
  <permits rdf:resource=”http://creativecommons.org/ns#Reproduction” />
  <permits rdf:resource=”http://creativecommons.org/ns#Distribution” />
  <permits rdf:resource=”http://creativecommons.org/ns#DerivativeWorks” />
</license>
</rdf>

Finally, Raquel Xalabarder has been extremely helpful in clarifying the international issues around the license. And now, on to the draft.

Open Education License Draft

Draft 0.9, August 8, 2007. This is a draft document and is not yet intended for use.

Disclaimer

The OpenContent Foundation is not a law firm and does not provide legal services. Distribution of this license does not create an attorney-client relationship. The OpenContent Foundation provides this information on an “as-is” basis. The OpenContent Foundation makes no warranties regarding the information provided, and disclaims liability for damages resulting from its use.

License

Licensor hereby grants You a worldwide, royalty-free, non-exclusive license to exercise any and all rights in the Work for which You would require a license under current, applicable law, including (but not limited to) the rights to:

• Reuse the work verbatim, just exactly as you found it
• Rework, alter, or transform the work so that it better meets your needs
• Remix and combine the (verbatim or altered) work with other works to better meet your needs
• Redistribute the verbatim work, the altered work, or the remixed work

Representations, Warranties and Disclaimer

Unless otherwise mutually agreed to by the parties in writing, licensor offers the work as-is and makes no representations or warranties of any kind concerning the work, express, implied, statutory or otherwise, including, without limitation, warranties of title, merchantibility, fitness for a particular purpose, noninfringement, or the absence of latent or other defects, accuracy, or the presence of absence of errors, whether or not discoverable. Some jurisdictions do not allow the exclusion of implied warranties, so such exclusion may not apply to you.

Limitation on Liability

Except to the extent required by applicable law, in no event will licensor be liable to you on any legal theory for any special, incidental, consequential, punitive or exemplary damages arising out of this license or the use of the work, even if licensor has been advised of the possibility of such damages.

Termination

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work).

So… what do you think?