My Current View on the CC-NC Licensing Option Controversy in OCWs

1. It’s an empirically verifiable fact that the greater number of rights a license reserves, the more people are willing to adopt the license. At the extremes of the continuum, almost everyone takes an “all rights reserved” approach while almost no one takes a “no rights reserved whatsoever” approach. The middle cases can be quickly verified by checking Flickr or any of a number of other sites that show the aggregate behavior of users allowed to choose between CC-licenses. I have done a little writing about this previously.

2. It’s also empirically verifiable that applying the NC clause to a bit of content adds steps to the process of reusing that content for commercial purposes. Yes, it is possible to contact the owner and negotiate a contract granting you rights to make commercial uses. But it is critically important to understand that these additional steps significantly increase the transaction costs associated with reusing content.

3. The elephant in the room that no one wants to acknowledge is that the CC-NC restriction may have no meaning beyond its “common-sense” meaning. In one of the better contributions to the whole debate, Adam Bosworth recounted the following:

My second question was towards 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”. The reason why is that these things are vague and untested. There are no definitive answers to this question of what is a commercial use. What is an advertisement anyways? Is a link to my resume an advertisement? How about just links to other websites I run? Because these questions cannot even be answered by Lessig, I would never ever re-use content that is tagged ‘NonCommercial’.

Any thoughtful person is forced to arrive at the same conclusion as Adam. If Lessig doesn’t know for sure what the NC clause covers and what it doesn’t, who does? I expect the courts will not. The hardest question of all: Are we being completely honest with faculty when we tell them that the By-NC-SA license prohibits commercial use? True, MIT has had success with cease-and-desist letters…

From 1., it follows that if we want more content to be contributed to the world-wide collection of “open” resources, we should provide NC as an option to faculty. From 2., it follows that even if there is more content in the world licensed “openly,” there will be real, actual costs associated with making certain uses of that content. From 3., it follows that if University of Phoenix ever were to take USU Instructional Technology OCW content and start using it in their classes – and a “cease and desist” request actually went to court – the odds are fair that the NC option would be invalidated.

So what does all this mean? Best case scenario is that we should probably be offering “choice” to our faculty in terms of how their materials are licensed. Let those who want to choose NC choose it (understanding how much protection it really offers), but don’t cram NC down the throats of people who don’t feel they need it. I certainly don’t need it, and yet my material is licensed By-NC-SA, just like all the other OCWs (and yes, we’re talking about internally at USU about “choice” in our OCW). Over time, hopefully faculty will abandon the NC clause. Let them move at their own pace – let’s just not prevent “early adopters” from doing what they want to in terms of adopting more open licensing.