Responding to Kira

Kira writes passionately (here; reposted here) about why Creative Commons should abandon the NC and ND clauses. S/he is wrong. The argument comes down to this:

“The crux of the concern raised by Students for Free Culture comes down to weather Creative Commons will be locked in by pressures to serve the interests of rightsholders or be committed to a strategic standard promoting free licensing towards the creation of an indivisible and shared commons.”

There are three major problems with the concern raised by SFC.

First, the sole purpose of Creative Commons is to serve rightsholders. Rightsholders are the only entities authorized to place a license on a work. Consequently, rightsholders are the only direct “customers” of the licenses Creative Commons provides.

When Kira asks whether or not CC will remain “locked in by pressures to serve the interests of rightsholders,” what other path forward does s/he imagine for Creative Commons? Whose interests might they be locked into instead? Users of creative works? “Unfortunately,” a user can’t place a license on someone else’s work. Creative Commons is an organization that offers licenses. Ergo, the only entities capable of using Creative Commons’ services are rightsholders.

I understand, of course, that there are huge benefits to society when rightsholders choose to use a Creative Commons license. But those benefits accrue only when rightsholders choose to use Creative Commons licenses. Creative Commons will forever and always serve the interests of rightsholders. There is no one else they can serve directly.

Second, it is a bit hypocritical to advocate for “the creation of an indivisible” commons, while simultaneously advocating for use of the SA clause. The SA clause is the sole source of license incompatibility in the CC universe. Without the SA requirement, the CC universe would already be undivided. NC and ND do not create legal divisions and incompatibilities among licenses, SA does. Consequently, if our true goal is an indivisible commons – that is, a commons which is incapable of being divided – CC must drop the SA clause. I’m not arguing that CC drop the SA clause, but want to be clear about the legal source of division in the CC universe.

Third, given the empirical evidence regarding level of demand from rightsholders for the NC and ND clauses, it strains credibility to suggest that people will stop using the 3.0 versions of the NC and ND-bearing licenses. These will inevitably fall out of sync with the current revs of the CC licenses. This gap between the 3.0 framework and the current framework will cause a significant “division” in the space of openly licensed creative works. It is also highly likely that, if CC refuses to continue to serve as steward for these clauses, that we will see the emergence of a new steward. This new actor will create new NC and ND enabled licenses into which the historical demand for NC and ND will flow. These new, even less-compatible licenses will further splinter the universe of openly licensed creative works. Consequently, the best thing Creative Commons could do to insure a commons “as undivided as possible” is continue to steward the NC and ND clauses going forward. An indivisible commons is legally impossible while SA is an option, so “as undivided as possible” is the best we can work for in the current context.