Noncommercial, Transaction Costs, and Sustainability

I recently received an email from Hal Abelson (you never know who’s reading your blog, I guess) in response to my post about MIT and CC’s differing interpretations of the NC clause. He reiterated that the Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercialâ€? are only a draft and do not represent CC’s interpretation of the NC clause, and assured me that MIT and CC do not take different stances on the interpretation. Hal can speak from a position of authority since he is both the Founding Director of Creative Commons and a member of the MIT faculty and the MIT OCW advisory board.

This is excellent news to hear, and I hope there is some public resolution soon. Perhaps CC’s draft best practice guidelines can be rewritten, or at least taken down for the time being. This has got me thinking about the NC clause again, and I want to spill a few thoughts here…

NC, Transaction Costs, and Friction

In his book the Wealth of Networks, Benkler characterizes the Creative Commons project as follows:

The Creative Commons is an initiative to develop a series of licenses that allow individuals who create information, knowledge, and culture to attach simple licenses that define what others may, or may not, do with their work. The innovation represented by these licenses relative to the background copyright system is that they make it trivial for people to give others permission to use their creations.

As Yochai says, the innovation is supposed to be that the licenses make it trivial for you to define what others may, or may not, do with a work. Of course, the case with the NC-CC clause is that it does not make it trivial to define what others may or may not do. It only makes it trivial to appear that you are doing so. Adam Bosworth recounted asking Lessig about…

the provision in many Creative Commons licenses that indicates content may not be used for ‘Commercial Use’. I asked, what is Commercial Use? Does reposting to a blog that has ads violate the copyright license? Larry Lessig’s answer was basically, “I don’t know”.

If even Lessig does not know what noncommercial is, how is your run-of-the-mill user supposed to understand what s/he may or may not do with a work? One perfectly acceptable answer is, of course, that they could read the full Terms of Use on the site with the CC licensed content. (MIT OCW has an excellent one in which it makes its interpretation of NC quite clear.) But notice what this answer to the “how do I know?” question does… 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.

I was unsurprised by, and very troubled by, a comment made in response to my recent post on this subject:

Quandary! I have found myself in that situation several times – I have found good material on the web that I would like to share with my students. However, the material was published under the NC restriction and I teach at a for-profit college, but I would use the material for educational purposes and I wouldn’t charge my students for it. What do I do? Up until now I have refrained from using NC material. David and Steve – can I now assume using material from MIT OCW is OK, but not material from other sites with the same NC license???

It is true that 99% of the people in the world are not paying any attention to the way content is licensed and are simply doing whatever they want with it anyway. However, those few who are paying attention and are trying to abide by the terms are having a time of it. Can a By-NC-SA license in the footer of one site grant one set of rights while the same By-NC-SA license in the footer of the next site grant a different set? This is essentially the question of the comment above. Currently the answer appears to be “yes,” which is a nightmare for the users that are trying to pay attention.

Even more troubling is Bosworth’s sentiment, “Because these [NC definition] questions cannot even be answered by Lessig, I would never ever re-use content that is tagged ‘NonCommercial’.” It is a perfectly understandable sentiment for Google’s Vice President of Engineering. This may be why, he says, “people are not re-using creative commons content.”

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.

NC, Markets, and Sustainability

In explaining the transaction costs and efficiencies of market-based and social exchange systems, Benkler again describes the necessity for crisp delineation, precision, and formality in market systems, and the greater tolerance of social exchange systems to fuzziness:

A market transaction, in order to be efficient, must be clearly demarcated as to what it includes, so that it can be priced efficiently. That price must then be paid in equally crisply delineated currency…. The crispness is a functional requirement of the price system. It derives from the precision and formality of the medium of exchange – currency – and the ambition to provide refined representations of the comparative value of marginal decisions through denomination in an exchange medium that represents these incremental value differences…

Social exchange, on the other hand, does not require the same degree of crispness at the margin… social exchange certainly occurs as a fuzzier medium.

Translation for our present purpose: Until the behaviors which the NC clause allows and forbids are more clearly articulated, the remixing and reuse of NC-licensed content will be confined to the world of social exchange; i.e., it will never mature to take on market-like sustainability and scalability characteristics. What legally liable entity would enter into a license agreement whose own authors couldn’t explain its terms?

Theoretically, all open educational resource initiatives, including the OCWs, have sustainability as a secondary goal (the primary goal, of course, being to better support learning around the world). It’s hard enough to try to build a “sustainable business model” on the practice of giving things away… As with the NC definition-related problems that led to the removal of the CC licenses from MITE’s Hippocampus last November, until the definition of the NC clause is officially clarified by CC perhaps projects that have “business model”-style sustainability as a requirement need to forego CC altogether.

Concluding Thoughts

Please note that I have not joined that group to whom I lovingly refer in an upcoming book chapter as the “Libre License Jihad.” 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.