Yes, Stephen, but Who Cares?

Stephen comments on Stian’s post:

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?

A Colossal Missing of the Point

Some years ago I had the opportunity to address a class taught by my good friend Erik Duval. I spoke about blogging. One of his students, eager to show how technically competent he was, glibly pointed out that the “blogging software” that was just becoming popular (Movable Type as I recall) did not provide any new capabilities. He could already do everything MT did using emacs. Erik’s response ran along the lines of, “Ok, Mr. Smarty Pants. Everyone else will use MT to post their online writing assignments this semester, but you can do all of yours by hand.” After only a moment’s reflection, he realized he had won the battle but lost the war.

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.

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?