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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provided by his CC license, Scott no doubt has a bad taste in his mouth now that his liberty has apparently been withdrawn – despite theoretically remaining irrevocable.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 3043 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 3040 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 3040 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 3040 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 3037 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 3037 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 3037 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 3037 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.

Creative Commons Cultivates Copyright · Monday November 22, 2010 by Crosbie Fitch

In Confusion and Complexity: High time to prune the Creative Commons licenses? Terry Hancock suggests that the set of Creative Commons Licenses can be simplified and reduced. However, I suggest this is to miss the mission of Creative Commons.

The whole point of CC having a variety of licenses is to demonstrate that the copyright holding, self-publishing author is in charge of determining what their audience can do, i.e. to insinuate that copyright is properly a right of the author, to modulate as they see fit.

If CC was actually principled upon restoring to the public their freedoms suspended by copyright then it would have a single copyright neutralising license, either abdicating it (cf BSD), or copylefting it (cf GPL).

Unlike the FSF, CC is a pro-copyright organisation, hence its willingness to imply that copyright is as much a right one may wish to unreserve as an inalienable/inviolable (natural) right – also known as a moral right. Why on earth would someone wish to waive their moral right to authorship to permit someone to falsely claim authorship of their work? Conversely, given that the right to copy was derogated from the individual’s right to liberty in 1709 by Queen Anne, it is quite laudable to wish to restore this to the public from whom it was stolen.

Terry, apart from demonstrating a complicated interim migration path, is in danger of suggesting that Creative Commons should commit the apostasy of moving from an organisation principled on empowering authors’ use of copyright to one principled on enabling/persuading authors to restore to the public their cultural liberty.

A single, libertarian license is what a liberty principled organisation would have created. Instead, espousing copyright as if a right, CC has created a complex confusion of licensing pollutants that have prevented a simple demarcation between copyright/proprietary and copyleft/free culture developing. This is probably the original objective, to consolidate copyright’s prominence and importance in any self-publishing artist’s consciousness.

Nina Paley has it right. “Copying art is an act of love”. It is those who love an artist and their work who are driven to want to promote that artist, to share their published work among their friends.

Cultural intercourse is not something to be constrained by commercial privilege. We must move from an obsession with copyright and obeying the copyright holder, to loving art, respecting the artist, and honesty in sharing their work and promoting them. This means embracing moral rights, but deprecating anachronistic constraints on distribution, copying, communication, or commerce. If you love me, sing my song, tell my story, but be true.

Jesse Thompson said 2284 days ago :

Meh, I have no use for any of their licences except for CC0. I’m currently publishing my commercial work CC0. I would do BSD but I estimate it’s requirement to include attribution to be over-burdensome for would be sharers, and not really any of my business.

Just out of curiosity, you wouldn’t know of any legal instruments aside from CC0 which disarm the noisome recourse to copyright at my disposal to best approximate public domain work, would you?

While I agree that the Creative Commons have an agenda of their own, I’d say this one licence of theirs isn’t half bad. But I’m interested in your opinion on that as well.

wiki.creativecommons…

Crosbie Fitch said 2284 days ago :

CC0 as demonstrated by the FAQ you link to is corrupt in conflating privileges (legislatively granted ‘rights’) with natural rights. Being inalienable, natural rights (aka moral rights in the context of intellectual work) should not be the subject of a license or other testament, nor even suggested as something an individual would aspire to be without.

So, the CC0 is just another device to cement the privilege of copyright as equivalent to a right, except in this case to join them for those who wish to divest themselves of all nuisance ‘rights’, which for some strange reason cannot be divested in certain jurisdictions (that properly recognise them as natural, inalienable, unlike granted privileges).

So, CC0 attempts to throw the baby out with the bathwater, the rights out with the privileges. It goes too far as if in petulance, offended at rejection.

There is no CC license that has been formulated to emancipate the public from the yoke of copyright, and this is because CC cannot conceive of a culture in which the author is not king over their subject audience, possessed of a god given authorial right to dictate how their published work may or may not be used, and to demand due obeisance wherever it is.

As for simulating a lack of copyright ‘protection’ all bets are off. Try claiming copyright in your work as dated 1810? Or perhaps declare that your work is wholly unoriginal, primarily factual, and not covered by copyright? Alternatively, provide a covenant that you will not sue anyone for any act involving your work that they are at liberty to do. Also check out the discussions on Nina Paley’s site (as I linked to in my article).

Mathias Klang said 2283 days ago :

Interesting stuff. But I would hardly say the FSF is anti-copyright as the GPL is dependent on copyright to work.

An interesting discussion is Glyn Moodys interview with Stallman on whether Free Software could exist without copyright. blogs.computerworldu…

Crosbie Fitch said 2283 days ago :

Mathias, the GPL attempts to restore to the public as much of the freedom suspended from them by copyright and patent as possible. That it uses a copyright license to achieve this should not be mistaken as ‘supporting copyright’. A license restores liberty (typically conditionally), it is not a constraint.

If copyright and patent were abolished tomorrow it would be a tad silly for the FSF to campaign for their reinstatement in order that the GPL could once again restore the freedoms they suspended.

drew Roberts said 2282 days ago :

Crosbie,

“Being inalienable, natural rights (aka moral rights in the context of intellectual work)”

it is my understanding that in some places what is called moral rights are more than what I think you are calling moral rights. check the cc mailing lists for some indication of this.

all the best,

drew

Crosbie Fitch said 2282 days ago :

Yes, Drew, like trademark and libel, in some jurisdictions moral rights become contaminated by the monopolist’s proprietary assumptions of control over others’ use of a covered work or design, and so they lose sight of protecting rights (such as the public’s apprehension of the truth – against deceit) and venture into nebulous realms of protecting a privileged party’s reputation or peace of mind (against disrepute, defamation, insult, etc.).

By moral rights I refer to the natural rights relating to intellectual works as opposed to the privileges (aka legislatively granted rights). Most of the moral rights that tend to be enumerated can be pared back to their natural foundation. It is only assumptions of control inculcated by copyright that lets their definition drift back toward proprietary privileges.

From Wikipedia:Moral rights:

Moral rights may mean several things:

  • Moral rights (copyright law) are a subset of the rights of creators of copyrighted works, including the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work.
  • Natural rights, also called moral rights or inalienable rights, are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity.

Moral rights are not a subset of proprietary ‘rights’ nor traditionally part of copyright law (YJMV). They exist independently of statute, and are recognised, not granted. It is not surprising that many would have moral rights given equal status to privileges, legislatively granted ‘rights’.

I’ll run through the ones listed:

  • ‘Right of attribution’

One does not have a natural right to be attributed. It is only that attribution must be truthful, i.e. accurate, not misleading, that misattribution does not occur whether explicitly or implicitly. If attribution can be omitted without misattribution occuring then no dishonesty occurs.

  • ‘Right to have a work published anonymously or pseudonymously’

Again, this isn’t well phrased. One is at liberty to publish a work without needing to identify oneself as author. One’s right to privacy outweighs mere pursuit of the truth of authorship. That no author can be identified for a work doesn’t permit anyone else to claim or misattribute authorship.

  • ‘Right to the integrity of the work’

Many presume this to mean that an author can veto modifications to their work. In some juridictions it may well be interpreted that way, but really it’s that what is presented as an author’s work should truly be that author’s work (or authorised by them). If it is clear to the audience that a work is modified, that it is an unauthorised derivative of another author’s work, then there is no loss of integrity. A work that is bowdlerised or otherwise adulterated without the audience’s knowledge has lost its integrity, whereas if the audience is cognisant that it is a subtle derivative then it is a new work distinct from the original.

angros47 said 1981 days ago :

CC is, for media files, what freeware is for software.

A freeware can be downloaded for free, and copied, but often it’s closed, you cannot sell it and you cannot modify it (exactly lika a CC nc-by-nd)

And freeware is not free software (it can also slow-down free software); many freewares are abandoned, or become commercial software.

Also, in CC there is nothing about the “source code”: many multimedia file have a source, that is needed to modify them, like software; for example, a 3d rendering (made with Poser, for example) cannot be easily modified, if you don’t have the 3d model. A song could be hard to edit, if you have only the MP3 and not the MIDI file.
But usually, even with a CC license, there is nothing that requires you to share the “source” with the final work.

Another problem is that using the “source code” is not always possible: if you have a program, and its source code, with the right compiler you can get a binary that is identical to the original (so, you can do a single change, without touching anything else). But, with a song, if you get the lyrics, can you rebuild the original song? No, because your voice is not the same of the original singer. If you have the script of a movie, can you rebuild the movie? No, because you don’t have the same actors.
And sometimes, the “source” cannot be copied: if I publish a pencil drawn picture, you’ll have only a scan of it, and you cannot work on it with pencil: but the source is only one, and the only way I have to make a copy is to hand-draw another one.

 

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