open content

Taking OER Within CC to the Next Level

Our good friend Cathy Casserly, former Director of the Open Educational Resources Initiative of the Hewlett Foundation, as just been elected to the Creative Commons Board of Directors. While there were already people on the CC board who cared about OER, the addition of Cathy means that the Board now has one of the most articulate OER champions around in their ranks. This is great news! Congrats to Cathy, CC, and anyone who cares about OER!

Coverage at:

open content

NC Survey Results

Creative Commons may not have set out to authoritatively define Noncommercial Use with their recent study, whose results were announced today, but I wonder how people will to interpret their findings… There appears to be broad agreement among survey respondents in some areas (as I highlight below). Unfortunately, the report also reveals that its respondents have very little understanding of copyright law. So what the report provides us is, in effect, a surprisingly coherent statement by a large group of people who have no idea what they’re talking about. Hundreds of thousands of people agree that it’s ok to download mp3s, but a single judge disagrees with them (authoritatively) all the time. Unfortunately, the consensus in this report is not particularly instructive. Rather, the consensus may be misleading if you allow it to convince you that it means something. Perhaps a more productive use of the study’s grant money would have been supporting the argument of cases that would establish real precedent.

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.

CC NC Survey Results

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?

open content

NC Isn’t the Problem, SA Is… Part Deux

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… 🙂