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The Fickle and Fleeting Freedom of a Creative Commons License · Friday October 24, 2008 by Crosbie Fitch

Scott Carpenter has noticed that a Creative Commons license is worth less than the paper it could have been printed on. Indeed, if it had been printed on paper, it might have been worth keeping.

In Free Culture ‘Take Backsies’ on Flickr Scott tells of how a photographer has subsequently removed the CC licenses applying to his photos on Flickr and reverted to undiluted copyright.

Having promoted the photographer in exchange for the liberty apparently provided by his CC license, Scott no doubt has a bad taste in his mouth now that his liberty has apparently been withdrawn – despite theoretically remaining irrevocable.

This is another reason why copyright is unsuited to digital work. You don’t have a piece of paper on which the license is printed (something that was once difficult to counterfeit).

In terms of online publications, one’s only hope in demonstrating that a liberal license was ever provided is the Internet Archive.

Although, copyright licenses are just as ridiculous as copyright in their application to digital works, they do serve as a form of ward against those who still believe copyright is sensibly applied to them. Thus the GPL needs no power against those who don’t believe in copyright, only against those who do.

Really, when championing free culture, the artist has to make a public statement rejecting copyright. A standard license is not something that can really be ‘attached’ to digital works, and it doesn’t hold much weight if the artist is fickle.

Admittedly, avowals against copyright can be implicitly expressed to some degree by wholly neutralising licenses such as the GPL, but then these are effectively recognised and recorded by a large number of deriving coders.

This is why those in the free culture movement (unlike free software) could never really form a consensus endorsement of a license. The manumission of one’s audience cannot be sufficiently performed by permissive licensing (especially given the pollution of CC’s pix’n‘mix). It needs a public statement rejecting the manacles of copyright that bind them. The artist must tell their audience emphatically that they are, and will always be, free.

Of course, copyleft licenses can still be additionally applied to non-s/w works (such as photos), but then with less reuse, there’s less establishment of their copyleft status.

What you’re left with as assurance is the risked reputation of the self-publishing artist.

As we have seen, the artist can piss about with CC licenses, tweaking the terms, even reverting back to full copyright, and not really worry about this fickle behaviour having much affect on their reputation.

This is all in line with Lawrence Lessig’s misguided belief that copyright can and should be wielded by the author as a means of authorial control rather than be reserved for the publishers it was originally intended for.

This is why an artist’s avowal is far more significant than a CC license, and indispensible for those cultural works that may see little reuse.

It gives us a much bigger clue in determining which kind of artist they are:

  1. The Lessigite artist who believes they should control what people do with their published work, and the uses to which it may be put. The sort of artist who one day may feel generous in giving their audience a little more liberty, and another day less, and considers this their authorial prerogative. If you can copy their work, it’s because they’ve permitted you to, not because you have any right to.
  2. The libertarian artist who believes that no-one, especially themselves, should control what other people do with their published work, and who will not change their mind. Nevertheless, this artist still expects honour and integrity among their audience, for themselves and their work to be truthfully represented, as they truthfully represent those artists and works they build upon.

Being the latter, this is why on my blog I put my reputation on the line. I don’t just piss about with a CC license.

“I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art”

That means I reject copyright, and will not assert it except as a means to prevent anyone else asserting it, e.g. via copyleft licenses such as the GPL.

Having a single published statement of my rejection of copyright (its grant to me of the public’s suspended cultural liberty) then backs up any copyleft licenses I might provide for those who find them useful.

Scott Carpenter said 3673 days ago :

Hi, Crosbie — thanks for the pointer and for expanding on the discussion. I appreciate your steady support of true digital freedom.

drew Roberts said 3670 days ago :

I think I am fairly close to where I think you are (well… we shall see)

I will use the tools that copyright law gives me to bring about a better situation.

I prefer Free and copyleft licenses for my artistic works in general.

I have some internally unresolved reservations when it comes to my image (photo) and especially that of my child.

I also want this freedom for non-digital works, I am not sure where you stand on that bit.

I do think that BY-SA is too weak for photographs and illustrations and am considering using just BY for at least some of them.

I am also testing the BY waters for some of my lyrics although I am way more leery with lyrics than with photos.

And again, you captcha just does not display properly here.

all the best,

drew

zotz.kompoz.com

Scott Carpenter said 3670 days ago :

I have similar concerns about family pictures, and tend to use BY-ND for those, although that does rely on copyright remaining a more intrusive mechanism. (And not that I think it does all that much for me, but I still use it.) I wouldn’t miss it much in a copyright free world.

What do you mean when you say BY-SA is too weak for photos?

Crosbie Fitch said 3669 days ago :

Drew, Scott, I’ll shortly be publishing another blog article on the subject of ‘reservations’ and ‘concerns’.

As for non-digital works, copyright is still unethical. The only difference is that copyright at least remains marginally effective in the material domain. Unlike file-sharers, mass copyright infringers (CD copiers) tend to have enough inertia and funds that they can be caught and/or dissuaded from entering the market place. Then you start needing things like WIPO to assert copyright monopolies in the far reaches of outer Mongolia.

Creative Commons ‘Share Alike’ may not be quite as copyleft as it could have been, but it is the most liberty propagating license they have.

The BY bit is rather misguided. Of course everyone wants to be given credit, to have their name in bright lights or even the small print, but this is a matter of respect, not something extracted from people on threat of prosecution. “But it’s such a little thing! Surely, it’s the least obligation I can expect from those who use my work?” Well, if it’s such a little thing, then it should easily be given as an honourable mark of respect, rather than dishonourably forced from someone via legal compulsion. It’s like disabling a DVD player’s remote control whilst copyright ‘educationals’ or warnings are shown. Taking small liberties from your audience to force their respect makes them respect you less, not more.

It is strange that you find CC-BY stronger than CC-BY-SA (or the latter too weak). The SA gives your audience (and you) more liberty, the lack of it, less.

Incidentally Drew, check out the response from Fred Benenson (Culture Program Associate at Creative Commons), and let me know if the ReCaptcha thing displays properly on that page beneath their comment form. What browser are you using?

Of course one can utilise digital signatures to corroborate works with licenses, and can provide online facilities to assist licensors and licensees in this regard, however that such arcane steps have to be taken to reassure punters that their license (partially restoring their rightful liberty) is bonafide and permanent is a big clue that Creative Commons is not the way of the future. It’s DRM again, but from the other direction. Instead of asserting that certain liberties cannot be taken with a specific copy by unauthorised persons, it asserts that certain liberties can be taken with a specific copy by authorised persons.

Tomorrow, when you take your memory stick into a shop for an enlargement of your wedding photo, they’ll demand to see (in the jpeg’s metadata) your digitally signed CC-BY-SA license certifying your authorisation to produce printed copies (which must of course have the original photographer’s details printed upon them – along with a derivative CC license).

What a fricking mess.

drew Roberts said 3667 days ago :

“It is strange that you find CC-BY stronger than CC-BY-SA”

That is not it. I find BY-SA stronger than BY but for photos, I think the extra strenght is not enough whereas it is much better when it comes to music.

Therefore, the extra baggage of a copyleft license may not be worth it in the case of photos.

For instance, if you use a BY-SA piece of music in a video or movie, you have to make the video or movie BY-SA or negotiate another deal. But, if you use a BY-SA photo in a magazine article, the article nor the magazine need to be BY-SA. (According to thinking on the cc lists.)

Does this make any sense to you?

I will try to comment more later when I have a bit more time.

drew

Crosbie Fitch said 3667 days ago :

Drew, I think you’re referring to the non-copyleft back-door in Share-Alike, i.e. that the parts of a combined works that don’t derive from the included CC-SA work don’t also need to be Share-Alike. In other words, a combined work can be copyrighted without license, as long as CC-SA licenses are still provided for its CC-SA components.

CC-SA isn’t as copyleft as the GPL, but it’s the closest to it that CC have. This is because CC wasn’t based upon a libertarian philosophy (as the GPL), but on an authorial philosophy. Lessig wanted to make it convenient for authors to modulate copyright, to select the liberties they fancied restoring to members of their audience, not to design a copyright neutralising license for the benefit of the public (including the author).

Perhaps you could explain what precisely you mean by ‘stronger’ or ‘weaker’? CC-BY-SA appears to me to grant the public more liberty than CC-BY – for all art forms. In terms of combined works, neither license affects the copyright of the combined work.

drew Roberts said 3667 days ago :

OK,

for instance in this license:

creativecommons.org/…

Under 1.b. we find:

“For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered a Derivative Work for the purpose of this License.”

So they put in some extra “strength” for the case of audio being used in video.

I have a lot of posts on this weakness in the mailing list archives over at cc.

I suggest one solution is to require the same license for any other work that gets a copyright and includes a BY-SA work. Compilations that don’t warrant copyright protection would not raise this requirement.

What I am saying is not that BY-SA is not always stronger than BY, it is. What I am saying is that BY-SA is stronger for some types of works than it is for others. AND, in some cases, BY and BY-SA MAY be close enough to make the extra protection of BY-SA not worth it in the face of the extra “costs” a copyleft license imposes.

all the best,

drew

Crosbie Fitch said 3667 days ago :

So they put in some extra “strength” for the case of audio being used in video.

I’m doubtful that ‘strength’ is the best term here, if you mean ‘more copyleft’.

The license arbitrarily disambiguates between a derivative work and a combined work, given some might consider the resultant work combined ‘audio+video’, and some a derivative ‘movie’.

The CC-BY no doubt makes no provision for either interpretation given it mandates no restoration of liberty to derivative works.

I suggest one solution is to require the same license for any other work that gets a copyright and includes a BY-SA work.

You have the audacity to suggest that CC create a proper copyleft license? Wash your mouth out with soap!

What I am saying is not that BY-SA is not always stronger than BY, it is. What I am saying is that BY-SA is stronger for some types of works than it is for others. AND, in some cases, BY and BY-SA MAY be close enough to make the extra protection of BY-SA not worth it in the face of the extra “costs” a copyleft license imposes.

That is the explanation I was after. Thanks. :)

This brings me back to my point that licensing is missing the wood for the trees. The critical issue is that the artist reassure their audience that they won’t prosecute them for enjoying their natural cultural liberty (only in extremis for denying such liberty to others), and that the licenses they provide are simply a further assurance and enablement of this manumission.



 

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