Creative Commons - Critiques
Read the general entry on the Creative Commons for a basic explanation.
- 1 Discussion
- 1.1 On the struggle with the Free Software Foundation for 'open license dominance' and why CC won
- 1.2 A commons for consumers or a commons for creators?
- 1.3 What is the key difference between the GPL and CC approaches
- 1.4 What are the prospects for its uptake by industry players?
- 1.5 Does CC-based Open Publishing underminde existing media communities?
- 1.6 True Open Access means Derivative Usage must be allowed
- 1.7 Some Additional Issues
- 2 Critiques
- 2.1 Review of the Critiques (short)
- 2.2 Review of the Critiques (long)
- 2.3 By Benjamin Mako Hill of the Free Software Movement
- 2.4 A Commons without Commonality
- 2.5 By Dmytri Kleiner: CC favors producers
- 2.6 By the Debian Free Software Project
- 2.7 The Creative Commons movement as capitalist assimilationism
- 2.8 The perverse effects of CC in the developing world
- 3 Bibliography
On the struggle with the Free Software Foundation for 'open license dominance' and why CC won
" CC has consolidated its license offering to reflect just three license choices (do you want to allow commercial use? do you want to allow derivatives? if yes, do you want to require that those derivatives be made available under share-alike terms?). In 2007, CC ‘retired’ the Sampling License and the Developing Nations License due to low demand and, perhaps more importantly, pressure from the Free Software Foundation who complained that these were not “free” licenses since they did not permit ‘worldwide noncommercial verbatim sharing’. In around 2005/6 (there isn’t an exact date because I don’t think anyone actually made an announcement) the organisation decided not to advance the CC Education License – predominantly because certain vocal individuals believed that educational uses should be wrapped up in all CC licenses (you can find the mailing list archives from that discussion here).
CC had very rational reasons for consolidating and limiting the number of licenses offered. Licenses are complicated to understand: fewer choices mean that it’s easier not to get confused; fewer choices mean fewer products to explain and support. In my current research on the Tor project and anonymity tools I came across a wonderful paper by Roger Dingledine and Nick Matthewson describing just this tradeoff. The paper, aptly called ‘Anonymity loves company: usability and the network effect’ describes how usability affects privacy in the sense that ‘even if you were smart enough and had enough time to use every system perfectly, you would nevertheless be right to choose your system based in part on its usability for other users’. These problems of scale and usability impact a great number of online projects because they need to reduce the number of options in order to consolidate a large number of users/content, but must also ensure that there is enough diversity of options (and further options as they learn more about tackling a certain problem) to enable growing usability. Increasing options and making the network more diverse will, in turn, dilute the numbers and thus the value of the network to users, thus decreasing the numbers of users.
It is also important to understand the political landscape as the two big players in open content licenses at the time – the Free Software Foundation and Creative Commons – battled it out in a war over who would control the ultimate meaning of the term ‘openness’. CC got the idea for its licenses back in 2002 from the FSF’s GNU-GPL but injected two key ingredients into the licensing offering that the FSF hadn’t dealt with very well: 1. usability (CC made it easier to license your work and easier to discover works in the pool) and 2. choice (I mistakenly used to believe that the difference was that CC enabled users to choose their conditions while FSF had only ‘one version of freedom’ but now I recognise that the choices were just different and that CC gave a better illusion of choice than the FSF did).
In the days before Wikipedia moved from the FSF’s GNU-FDL to the CC BY SA license, the FSF was definitely in the lead of this battle. CC could show few examples of the value that comes from pooling CC-licensed materials over time into a high value collaborative product (most of their licensors were – and still are – stand-alone entities or individuals who draw successfully from the pool to create new works). By compromising with the FSF and successfully negotiating the move by Wikipedia to adopt CC licenses by making the GFDL and BY-SA licenses compatible, CC was able to gain the upper hand and radically boost its identity as the default open license provider.
The problem comes in when we start thinking that this is the only way to license materials – when it seems inevitable that this is the only way to build a space distinct from the failures of copyright on the Internet without considering the innumerable options available to builders of these kinds of products as they construct these artifacts of politics. The result is that CC starts to look like the hammer in the ‘law of the instrument‘ with the addition that when you think all you have is a hammer, then every problem looks like a nail." (http://hblog.org/2010/11/29/has-creative-commons-become-inevitable/)
A commons for consumers or a commons for creators?
(key underlying argument: using the non-commercial feature basically excludes creators from using the commons)
“Two divergent and clashing conceptions in the use of CC licenses become evident.
The first employs them as instruments designed to guarantee access.The ‘commons’ that this model aspires towards is one based only on consumption. Universal reception is approved but all other rights are reserved, especially control over context and reuse. Only non-commercial use is permitted. Sometimes no derivative works are allowed due to a desire to protect the integrity of the text or video.
The second focuses on amassing a large stock of common materials for whose use no-one’s permission is required. The fear of commercial appropriation is put aside for the hope of contaminatory insinuation into the mainstream thus integration with commercial products is permitted. But all new (derivative) works must be available to be used themselves - it’s the GPL for culture and it relies upon the sharealike clause - I share if you share.
Thus the potential emerges for a material base of raw materials that can be continually reworked, improved upon and exploited in any number of ways. Contributors are assured that their work will not be appropriated unilaterally. Other works infected by sharealike become collective resource and a form of indirect income like free transport, access to education and housing. At a moment of both generalised precarization and restraints on expression it provides a rare guarantee.” (http://knowfuture.wordpress.com/2007/02/17/a-commons-for-creators-or-consumers/)
What is the key difference between the GPL and CC approaches
See our entry on the GNU General Public License
It helps to distinguish between different forms of sharing and purpose. There are many cases in which the individual need for expression and creative sharing is primary, and the commons is a derivative product of the individual creative process. In this case, the Creative Commons approach, which starts from a very strong position of the sovereignity of the individual, is appropropriate, and leaves the individual with a range of choices, many of which are not conducive to the creation of a strong Commons.
But there are other projects in which in individual consciously participates in a common project, such as Linux or the Wikipedia, where his contribution, even though it may correspond to an individual need, is clearly aimed at construction a Commons, which is therefore primary. In such a case, the GPL license is much more appropriate and conducive to the creation of a strong Commons.
What are the prospects for its uptake by industry players?
"How do Hollywood and other major industries accept CC?
There is a mixed response. I think that because the core values of CC involve Free Culture, I think that often this is misinterpreted to mean anti-copyright. In fact CC is not anti-copyright. It is just asking to allow artists to make choices based on what they would like to do.
I think that the enlightened people in the industry know, like and use CC. Some have even begun to understand the commercial benefit of using CC for marketing lesser know artists or for promotion already well know artists. I think that as new business models that involve sharing evolve, people will find that sharing actually makes business sense.
I think that we are struggling to make this case because for most people any change is frightening and disruptive. I am confident, however, that we will wind the hearts and minds of most people in Hollywood.
A good example is the Internet. Initially the Internet (or TCP/IP) was at odds with what most of the worlds companies and standards bodies wanted to do. it was considered rogue and illegal in some countries. Pushing the Internet was a political statement. Now everyone uses it. Some people would like to make it more closed and some of us fight to keep it open, but for the most part, people see its value and realize now that open is better than closed. I think that CC might follow a similar path." (http://joi.ito.com/archives/2007/06/23/interview_for_macedonian_newspaper.html)
Does CC-based Open Publishing underminde existing media communities?
From a controversy in the Sivacracy blog, by Tarleton Gillespie :
Summary of the challenge:
"people trade music one peer-to-peer networks with no concern for paying the artist; that works now, since all this music has already been released — but what happens when artists stop producing music altogether because it is being redistributed, and fans are left with nothing to trade? Or, political blogging claims to be an improvement over mainstream media, avoiding lots of the problems that commercial and institutional imperatives force on the old form — but blogging rarely includes investigative inquiry or breaking news, its really about recirculation, commentary, critical analysis, so what happens if the mainstream news collapses, what will bloggers comment on?"
"These concerns are, I believe, unwarranted because they are too stark: there are lots of reasons why musicians will continue to make music and journalists will continue to investigate, even in a context in which users now eagerly take, recirculate, and comment on their work. But Price’s concern is a sharper one: does the value of community, the way people gather around a site like openDemocracy, fuel the continued production of its content, and its sense of significance? (This has echoes of Benjamin’s worry about the loss of “aura” when cultural works can be easily reproduced.) If those materials can be found outside of its designed context, whether its on another site or through aggregators like Google News or RSS readers, will those communities wither? As price puts it,
The commons have always been sustained by communities, and the digital commons, embodied in the iCommons movement, will be the same. Communities both pay for and give life to endeavours in the public space. They supply both sense and cents.
What Price underestimates is the “attribution” aspect of the Creative Commons license, and of this context of abundance more generally. Communities can’t just hunker down and survive, they need to grow and remain vital. They do this by expanding their reach, finding new members while also serving the old, connecting to other conversations and deepening them. The fact that openDemocracy’s articles get picked up and re-posted on other sites, or made available out of context through Google News, not only gets them to more people, it directs some of those readers back to the site, where some of them may become members themselves. The link back to openDemocracy, through attribution and through a literal hyperlink, is a kind of advertising, a kind of invitation, a kind of enticement. It’s actually better than an ad, because rather than being told “you really should check out our site, it’s good, I swear” a reader finds value in an article, and has reason to seek out more. Just as some musicians will continue to make music, even if there is no profit for them, and just as some journalists will seek out information even if there is no financial reward coming to them, communities will continue to form around shared value and meaning. The porous boundaries of these communities is always valuable and risky, and every community struggles with how porous to be. But allowing the content itself to circulate strikes me as the most powerful way to make a community open, strong, viable, and lively." (http://www.sivacracy.net/archives/004344.html)
True Open Access means Derivative Usage must be allowed
Catriona J. MacCallum:
"with this welcome trend comes a more insidious one to obscure the true meaning of open access by confusing it with free access. As the original Bethesda definition makes clear, open access allows for unrestricted derivative use; free access does not. So the beauty of open-access publishing is not just that you can download and read an article for personal use. You can also redistribute it, make derivative copies of it. This is because the open-access license most commonly used—the Creative Commons Attribution license (http://creativecommons.org/licenses/)—permits derivative reuse, as long as the author is correctly cited and attributed for the work. It is the most liberal of the available Creative Commons licenses (there are six), which are now applied widely to books, music, videos, etc., as well as scholarly works. It is important to note that of the six different Creative Commons licenses, only those that permit unrestricted derivative use (which may be limited to noncommercial use) truly equate with open access. (http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio.0050285)
Some Additional Issues
Sudhir Suyal :
"Hang on a minute. So these licenses mean that all content is actually given away free and the content creators are still making money out of it?
Yes, believe it or not, it's true. The common phenomenon is that, once an interest is generated around a product freely available on the internet, a large proportion of those who use the content on the internet, move over to a retail store and actually pay for the same content in a physical form.
The reasons are manifold, some buy it for purposes of convenience, other do so to show their respect for the content creators, while still others buy it because of their perception of value in buying a product they can touch, feel and put on their rack. More than anything, the content available freely on the web helps build hype and WOM (Word of Mouth) attention onto the content, which more often than not translates into sales.
There are a number of content creators which have used this strategy and come out successful; you can read more about them here and here.
Has anyone taken these licenses seriously? Have legal bodies given them recognition?
Well, the best way to answer that question is to tell you about an incident which happened recently. Well known podcaster Adam Curry, was shocked to see one morning a collection of photos from his Flickr page appear without his permission in the Dutch Tabloid 'Weekend Magazine'. The license for all his content on Flickr being a non-commercial Creative Commons license meant that any commercial use of his photographs was strictly disallowed and his permission would have to be sought if it were to be used.
The case went to the Dutch Courts, and Curry won.
The tabloid was warned, with the ruling clearly stating that moving forward, the tabloid would be fined a sum of 1000 Euros for every photo they were to use without his permission. An analysis of the decision states that, "The Dutch Court's decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license."
This was a victory for the Creative Commons movement. Their belief and faith in the movement had been vindicated.
Given the recent nature of this phenomenon, and the unstructured new media laws in most countries, it's still unclear how Creative Commons licenses will be upheld in other countries, only time will perhaps give us that answer.
Where have these licenses been used since their launch?
Since its launch, the response has been dramatic with a number of blogs, photos, videos and other creative content being licensed with the Creative Commons licenses. Some of the notable projects which have been CC Licensed have been popular internet platforms such as Flickr and Wikimedia Commons, while other formal publications and instructional materials such as MIT OpenCourseWare and the Public Library of Science have been others who have labeled their content with CC Licenses.
The movement has seen itself extend to other forms of media such as newspapers, magazines, blogs and record labels apart from open space films such as Elephants Dream and Cactuses ." (http://spicyipindia.blogspot.com/2007/10/spicyip-guest-series-sudhir-syal-on.html)
Review of the Critiques (short)
"Some of the common points of criticism have been:
- An Ethical position – Many have criticized the Creative Commons organization for not having an ethical position to base its licenses. Proponents of the Free Software Movement have argued that many of the CC Licenses have instead of providing more freedom to content creators, actually served as a hindrance. The Creative Commons organization reacted by retiring some of those specific licenses.
- A Political position – Many who have examined the group have completely disregarded its relevance, potency and effectiveness describing the group as an unconcerned corporate filter serving more to feed all those participating into corporate co-option with no specific motive.
- A Pro-Copyright position - The content industry as a whole has said that the Creative Commons Licenses in general undermine copyright laws showing utter disrespect for the media industry at large. Further, they have criticized the movement saying that instead of simplifying license proliferation, they have worsened it by providing that are incompatible with most forms of media.
A paper by Niva Elkin Koren , a professor of law at the University of Haifa Israel, forms a an alternative view on Creative Commons, presenting her hypothesis on how instead of opening out a new world of creative thinking and freedom, the movement might actually inadvertently create more of a restrictive licensing culture because of the easy accessibility to licenses. Her view is that, since most creative content is actually devoid of copyright licensing in any case, the Creative Commons licenses are in most cases giving creative content new licenses and restrictions which previously did not exist." (http://spicyipindia.blogspot.com/2007/10/spicyip-guest-series-sudhir-syal-on.html)
Review of the Critiques (long)
"Lately, the growing popularity of the Creative Commons licenses has been counterpointed by a growing amount of criticism. The objections are substantial and boil down to the following points: that the Creative Commons licenses are fragmented, do not define a common minimum standard of freedoms and rights granted to users or even fail to meet the criteria of free licenses altogether, and that unlike the Free Software and Open Source movements, they follow a philosophy of reserving rights of copyright owners rather than granting them to audiences. Yet it would be too simple to only blame the Creative Commons organization for those issues. Having failed to set their own agenda and competently voice what they want, artists, critics and activists have their own share in the mess.
In his paper "Towards a Standard of Freedom: Creative Commons and the Free Software Movement," free software activist Benjamin Mako Hill analyzes that "despite CC's stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software's success is built upon an ethical position. CC sets no such standard."^1 In other words, the Creative Commons licenses lack an underlying ethical code, political constitution or philosophical manifesto such as the Free Software Foundation's Free Software Definition or Debian's Social Contract and the Open Source Initiative's Open Source Definition.^2 Derived from each other, these three documents all define free and open source software as computer programs that may be freely copied, used for any purpose, studied and modified on source code level and distributed in modified form. The concrete free software licenses, such as the GNU General Public License (GPL), the BSD license and the Perl Artistic License, are not ends in themselves, but only express individual implementations of those constitutions in legal terms; they translate politics into policies.
Such politics are absent from the Creative Commons. As Mako Hill points out, the "non-commercial" CC licenses prohibit use for any purpose, the "no-derivatives" licenses prohibit modification, and the CC "Sampling License" and "Developing Nations License" even disallow verbatim copying. As a result, none of the user rights granted by free and open source software are ensured by the mere fact that a work has been released under a Creative Commons license. To say that something is available under a CC license is meaningless in practice. Not only does the CC symbol look like a fashion logo, it also isn't more than one. Richard Stallman, founder of the GNU project and author of the Free Software Definition, finds that "all these licenses have in common is a label, but people regularly mistake that common label for something substantial."^3 Yet some if only vague programmatic substance is expressed in CC's motto "Some rights reserved." Beyond being, quote Mako Hill, a "relatively hollow call," this slogan factually reverses the Free Software and Open Source philosophy of reserving rights to users, not copyright owners, in order to allow the former to become producers themselves.
While Mako Hill embraces at least a few of the CC licenses, such as the ShareAlike License under which his own essay is available, Stallman finds it a "self-delusion to try to endorse just some of the Creative Commons licenses, because people lump them together; they will misconstrue any endorsement of some as a blanket endorsement of all."^4 According to an entry on his weblog, Stallman had "asked the leaders of Creative Commons privately to change their policies, but they declined, so we had to part ways."^5 The Debian project even considers all CC licenses non-free and recommended, in 2004, that "authors who wish to create works compatible with the Debian Free Software Guidelines should not use any of the licenses in the Creative Commons license suite,"^6 mostly because their attribution clause limits modifications, because of restrictions on the Creative Commons trademark and ambiguously worded anti-"Digital Rights Management" (DRM) provisions that could be interpreted as prohibiting distribution over any encrypted channel, including for example PGP-encoded E-Mail and anonymizing proxy servers.
Whatever stance one may adopt, the name "Creative Commons" is misleading because it doesn't create a commons at all. A picture released, for example, under the Attribution-ShareAlike license cannot legally be integrated into a video released under the Attribution-NonCommercial license, audio published under the Sampling License can't be used on its soundtrack. Such incompatible license terms put what is supposed to be "free content" or "free information" back to square one, that is, the default restrictions of copyright - hardly that what Lawrence Lessig, founder of the Creative Commons, could have meant with "free culture" and "read-write culture" as opposed to "read-only culture." In his blog entry "Creative Commons Is Broken," Alex Bosworth, program manager at the open source company SourceLabs, points out that "of eight million photos" posted under a CC license on Flickr.com "less than a fifth allow free remixing of content under terms similar to an open source license. More than a third don't allow any modifications at all."^7 The "principle problem with Creative Commons," he writes, "is that most of the creative commons content is not actually reuseable at all."
While these problems may at least hypothetically be solved through improvements of the CC license texts - with the license compatibility clauses in the draft of the GNU GPL version 3 as a possible model -, there are farther-reaching issues on the level of politics as opposed to merely policies. CC's self-definition that "our licenses help you keep your copyright while inviting certain uses of your work - a `some rights reserved' copyright" translate into what the software developer and Neoist Dmytri Kleiner phrases as follows: "the Creative Commons, is to help `you' (the `Producer') to keep control of `your' work." Kleiner concludes that "the right of the `consumer' is not mentioned, neither is the division of `producer' and `consumer' disputed. The Creative `Commons' is thus really an Anti-Commons, serving to legitimise, rather than deny, Producer-control and serving to enforce, rather than do away with, the distinction between producer and consumer."^8 Citing Lessig's examples of DJ Dangermouse's "Grey Album" and Javier Prato's "Jesus Christ: The Musical" - "projects torpedoed by the legal owners of the music used in the production of the works" - Kleiner sharply observes that "the legal representatives of the Beatles and Gloria Gaynor could just as easily have used Creative Commons licences to enforce their control over the use of their work."
The distinction between "consumers" and "producers" couldn't be more bluntly stated than on CC's home page. It displays, on its very top, two large clickable buttons, one labelled "FIND Music, photos and more," the other "PUBLISH Your Stuff, safely and legally," the former with a down arrow, the latter with an up arrow in its logo.^9 The small letters are no less remarkable than the capitals. Upon first glance, the adverbs "safely and legally" sound odd and like material for a future cultural history museum of post-Napster and post-9/11 paranoia. But above all, they name and perpetuate the fundamental misunderstanding artists seem to have of the Creative Commons: Free licenses were not meant to be, and aren't, a liability insurance against getting sued for use of third-party copyrighted or trademarked material. Whoever expects to gain this from putting work under a Creative Commons license, is completely mistaken.
Artists are desperately looking for a solution to a problem that ultimately resulted from their own efforts of redefining art. When art was granted, in Western cultures at least, an autonomous status, artists were - to a moderate degree - waived from a number of legal norms. Kurt Schwitters was not sued for collaging the logo of German Commerzbank into his "Merz" painting which in turn yielded his "Merz" art. Neither did Andy Warhol receive injunctions for using Coca Cola's and Campbell's trademarks. As long as these symbols remained inside the art world, they did not raise corporate eyebrows. Experimental artists embraced the Internet just because it did away with the separation of white cubes - in which logos and trademarks were safe from being mixed up with the original ones - and the outside world. Mainly thanks to the Internet, artistic simulations of corporate entities were believable for the first time. The Yes Men could pose as the World Trade Organisation and get invited to World Economic Forum as WTO representatives, 0100101110101101.org could tactically disguise themselves as the Nike company. Older artistic simulations like Res Ingold's "Ingold Airlines" were not only transparent and clumsy in comparison, but also on the safe grounds of an art system with little or no interference of corporate lawyers. But ever since the World Wide Web, file sharing and cheap or free authoring software tore down walls between art and non-art practice, producers and consumers, former consumers were held liable as producers, and artistic production became subject to non-art world norms, as obvious in the FBI investigations of Steve Kurtz and ubermorgen.com for bioterrorism, respectively tampering the U.S. presidential elections.
Previous artistic critiques of corporate and intellectual ownership were much less efficacious even where they were programmatically more radical. Between 1988 and 1989, a series of countercultural "Festivals of Plagiarism," organized by Stewart Home, Graham Harwood and others, struggled with wide gaps between radical anti-copyright rhetoric and an artistic practice limited mostly to photocopied mail art work. John Berndt, a participant of the London Festival of Plagiarism in London, left with the impression that "a repetitive critique of 'ownership` and 'originality` in culture was juxtaposed with collective events, in which a majority of participants [...] simply wanted to have their 'aesthetic` and vaguely political artwork exposed,"^10 making fellow Neoist tENTATIVELY, a cONVENIENCE conclude that "Festivals of Recycling might have been more accurate descriptions" for the events: "By virtue of calling the act of reusing and changing previously existing material (not even always with the intention of critiqueing said material) 'Plagiarism` the appearance of being 'radical` could be given to people whose work was otherwise straight out of art school teachings."^11
Today, similar gaps and misunderstandings exist between copyleft activists and artists who just seek to legitimize their use of third-party material. When Lawrence Lessig characterizes the Creative Commons as "'fair use`-plus: a promise that any freedoms given are always in addition to the freedoms guaranteed by the law,"^12 this is technically correct, but nevertheless misunderstandable, especially for artists who aren't legal experts. Putting a work under a CC license - or even a non-ambiguously free GNU or BSD license - means to grant rather than to gain uses in addition to standard fair use. The Creative Commons do not solve the problem of how not to get sued by Coca Cola or Campbell's at all. Non-free copyrighted material cannot be freely incorporated into one's work no matter what license one choses. Even worse, the opposite is true: copyright owners are most likely to categorically refuse clearance for anything that will be put into free circulation because the license of the work incorporating their's would effectively relicense the former. If, for example, the Corbis corporation would permit the photograph of Einstein sticking out his tongue - for which it holds the rights - to be reproduced in a freely licensed book, it would free the picture for anyone else's use as well. Since this can hardly be expected from the Bill Gates-owned company, free licensing often restrains rather than expands one's possibilities of using third-party material.
This example reveals a crucial difference between software development and artistic practice: Programming can sustain itself on its own, self-built library of reusable work, but art hardly so. The GNU copyleft works on the premise that modifications are also contributions. If, for example, a company like IBM choses to modify the Linux kernel to run on its own servers, the GNU license forces it to give back the added code to the development community. And the more code is available as free software, the higher the incentive for others to simply build on existing free code libraries and give back changes rather than building a new program from scratch. This explains why even for computer companies, free software development can make more economic sense than the close source commercial model. In addition, free software development profits from a difference between source code and perceivable appearance that doesn't have an exact equivalent in most artistic work: Programs can be written that look and behave similar or identical to proprietary counterparts as long as they don't use proprietary code and do not infringe on patents. This way, AT&T's Unix could be rewritten as BSD and GNU/Linux, and Microsoft Office could be cloned as OpenOffice. Even patents which could spoil such appropriations aren't as internationally universal and not remotely as long-lasting as copyright. In other words, free software development could be an "appropriation art" without copyright infringement.
The same isn't possible for most artists, however, and it makes little sense for them to restrict their uses to material whose copyright has either expired or that has been released under sufficiently free licenses. The Coca Cola logo can't be cloned as a copylefted "FreeCola" logo, and it would be pointless for the YesMen to pose as an "OpenWTO" or for 0100101110101101.org to have run as "GNUke" instead of Nike. If even harmless collaging, sampling and quoting becomes risky because of media industrial Internet copyright paranoia and whole business models based on injunctions and lawsuits, it is a political matter of fair use, not of free licenses. In the worst case, free licenses, all the more fluffy and pseudo-free ones like the Creative Commons, could be used to legitimize new restrictions of fair use legislation, or even its abolition altogether, with the alibi that the so-called "ecosystem," or ghetto, of more or less freely licensed work provides enough fair use for those who bother to care.^13
It is not hard to bash the Creative Commons for being an organization run with little understanding of the arts, and not even a good understanding of free software philosophy. On the other hand, artists themselves have failed to voice themselves what they want. The exceptions are few and rather marginal, such as the anti-copyright philosophies and politics of Lautr?amont, Woody Guthrie (who, according to Dmytri Kleiner, released his songbook with the license that "anybody caught singin' it without our permission, will be mighty good friends of ours, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it"), Lettrists, Situationists, Neoists, Plunderphonics musicians and some Internet artists including the French artlibre.org collective whose "Free Art License" predates the Creative Commons by two years.^14
A team of lawyers whose work consists of creating, as Bosworth puts it, "low cost legal templates," the Creative Commons organization has simply listened to all kinds of artists and activists, trying to do justice to diverse and sometimes contradictory needs and expectations, with licenses "designed to give artists choice" (Mako Hill) rather than prioritizing free use and reuse of information. In contrast, Free Software and Open Source are, like any human and civil rights effort, universalist at their core, with principles that may be neither negotiated, nor culturally relativized.
If someone is to blame for the fact that artists, political activists and academics from the humanities have largely failed to recognize those essentials, then it is Eric S. Raymond, founder of the "Open Source Initative" (http://www.opensource.org), the group that coined the term "Open Source" in 1998. The main advantage of the term "Open Source" over "Free Software" is that it doesn't merely refer to computer programs, but evokes broader cultural connotations.^15 For most people with artistic backgrounds, GNU's "Free Software" sounded too confusingly similar to (close-source) "freeware" and "shareware." "Open Source" sparked an all the richer imagination as Raymond didn't simply pitch it as an alternative to proprietary "intellectual property" regimes, but as a "Bazaar" model of open, networked collaboration. Yet this is not at all what the Open Source Initiative's "Open Source Definition" says or is about. Derived from Debian's "Free Software Guidelines," it simply lists criteria licenses have to match in order to be considered free, respectively open source. The fact that a work is available under such a license might enable collaborative work on it, but it doesn't have to by definition. Much free software - the GNU utilities and the free BSDs for example - is developed by rather closed groups and committees of programmers in what Raymond calls a "Cathedral" methodology. Conversely, proprietary software companies such as Microsoft may develop their code in distributed "Bazaar" style. Nevertheless, the homepage of http://www.opensource.org states that the "basic idea behind open source" is about how "software evolves," "at a speed that, if one is used to the slow pace of conventional software development, seems astonishing," thus producing "better software than the traditional closed model." Regardless which position one takes in the philosophical and ideological dispute between "Free Software" and "Open Source," the self-characterization of Open Source as a development model mixes up cause and effect, being inconsistent with what the Open Source Definition qualifies as Open Source, i.e. software that meets its standards of free use.
Given how "Open Source" has been propagated as a model of networked collaboration instead of user rights or free infrastructures, the gap between the lip-service paid to it in the arts and humanities and the factual use of free software and copylefts comes to little surprise. "Cultural" free software conferences whose organizers and speakers run Windows or the Mac OS on their laptops continue to be the norm. With few exceptions, art education hardly ever involves free software, but is tied to proprietary software tool chains. Yet - often vague and half-informed - "Open Source" references abound in media studies and electronic arts writing.
The problem is not so much that people do not use free operating systems, but that software-political correctness anxiety prevents a more honest critical discourse. A debate on "why free software doesn't work for us" would be more productive for its development than the current hypocrisy. Recent discussions on why, for example, free software culture involves disproportionally few women (even in comparison to proprietary software development) at least begin to tackle some of the issues.
Productive critique, after all, is needed. Eight years after the coinage of "Open Source", Raymond's Hegelian claims of superior development methodologies sound increasingly hollow. Free software hasn't displaced proprietary software at all and seems, despite its success on servers and in embedded systems, to be unlikely to take over mainstream personal computers any time soon. Free software, it seems, has its strength in building software infrastructure: kernels, file systems, network stacks, compilers, scripting languages, libraries, web, file and mail servers, database engines. It lags behind proprietary offerings, for example, in conventional desktop publishing and video editing, and, as a rule of thumb, in anything that isn't highly modularized or used a lot by its own developer community. The closer the software is to the daily needs and work methods of programmers and system administrators, the higher typically its quality.
Similar rules seem to apply to free information, respectively "Open Content" development. The model works best for infrastructural, general, non-individualistic information resources, with Wikipedia and FreeDB (and lately MusicBrainz) as prime examples. Similarly, the cultural logic of sounds and images circulating under CC licenses is largely that of stock music, stock photography and clip art, regardless the fact that current CC licenses mostly fail to permit their "mashups," boiling down to little more than "Web 2.0" lifestyle logos. Beyond infrastructural information, the value of free licensing is somewhat doubtful. Experimental, radical art and activism that does not play nice with third-party copyrights and trademarks can't be legally released and used under whatever license anyway. Its work should rather - and explicitly - be released into the public domain with, quote jodi, "all wrongs reversed" and, quote Kleiner, "all rights detourned under the terms of the Woody Guthrie General License Agreement." For professional artists, this simply means to acknowledge the reality of contemporary art economics: that artists, with the exception of a handful of stars, no longer live from producing material goods (for which copyright granted lifetime monopolies, or at least the illusion of continuous revenue streams), but like 17th century project entrepreneurs from commissioned projects whose material products have little or no market value by themselves.
Copyright, having turned from a regulation into a subsidy of publishing industries, is the 21st century equivalent of drug legislation. Everyone knows that it is obsolete, dysfunctional, and depriving people of their rights; absurd wars are foughts in its name. The simple fix is to abolish it." (http://www.nettime.org/Lists-Archives/nettime-l-0610/msg00025.html)
By Benjamin Mako Hill of the Free Software Movement
Read the whole critique at http://www.advogato.org/article/851.html
Here is the gist of the argument:
"However, despite CC's stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software's success is built upon an ethical position. CC sets no such standard." (http://www.advogato.org/article/851.html)
Mako subsequently concluded:
"Whether in unison or cooperating in separate groups, it is time for those those of us that feel strongly about freedom to discuss, decide, and move forward with our own free information movement built upon a standard of freedom. When we have defined free information in terms of essential freedoms, a subset of Creative Commons works and a subset of Creative Commons licenses will provide tools and texts through which a social movement can be built."
And with Erik Moller, created the Freedom Defined website to work on a solution, see at http://freedomdefined.org/
A Commons without Commonality
David Berry, Giles Moss:
We argue that the Creative Commons project on the whole fails to confront and look beyond the logic and power asymmetries of the present. It tends to conflate how the world is with what it could be, with what we might want it to be. It’s too of this time—it is too timely. We find an organisation with an ideology and worldview that agrees too readily with that of the global “creative” and media industries. We find an organisation quick to accept the specious claims of neo-classical economics, with its myopic “incentive” models of creativity and an instrumental view of culture as a resource. Lawrence Lessig is always very keen to disassociate himself and the Creative Commons from the (diabolical) insinuation that he is (God forbid!) anti-market, anti-capitalist, or communist. Where we might benefit from critique and distance, the Creative Commons is too wary to advocate anything that might be negatively construed by the “creative” industry. Where we would benefit from making space available for the political, the Creative Common’s ideological stance has the effect of narrowing and obscuring political contestation, imagination and possibility.
Like others before him, Lawrence Lessig bemoans the loss of a realm of freely shared culture. He writes about the colonisation of the public domain brought about by extensions in intellectual property law and the closing down of the technical architecture of the internet. He rightly identifies the way in which global media corporations have lobbied to extend the terms of copyright law so that they can continue to profit from their ownership of creative works. He also identifies the way in which private interests are simultaneously encoding and enrolling digital technologies in order to support their control of artistic and intellectual creativity. Whereas others who problematise these trends turn to the political, the legal professor’s penchant is to turn to the field of law and lawyers. What follows is a technical attempt to (re-)introduce a commons by instituting a farrago of new legal licences in the existing system of exploitative copyright restrictions. This is the constructive moment of the so-called “Creative” Commons.
This understanding of culture frames the Creative Common’s overall approach to introducing a commons in the information age. As a result, the Creative Commons network provides only a simulacrum of a commons. It is a commons without commonalty. Under the name of the commons, we actually have a privatised, individuated and dispersed collection of objects and resources that subsist in a technical-legal space of confusing and differential legal restrictions, ownership rights and permissions. The Creative Commons network might enable sharing of culture goods and resources amongst possessive individuals and groups. But these goods are neither really shared in common, nor owned in common, nor accountable to the common itself. It is left to the whims of private individuals and groups to permit reuse. They pick and choose to draw on the commons and the freedoms and agency it confers when and where they like.
We might say, following Gilles Deleuze, that the Creative Commons licensing model acts as a “ plan(e) of organisation ”. It places a grid over culture, communication and creativity, dividing it and cutting it into discrete pieces, each of which have their own distinct licence, rights and permissions defined by the copyright holder who “owns’ the work. Lessig’s attempt to make it easier to understand which creative works can, or cannot, be used for modification (due to copyright) has spawned a monster with a thousand heads. The complexity of licences and combinations of licences in works has expanded exponentially.
Lessig’s attempt to make it easier to understand which creative works can, or cannot, be used for modification (due to copyright) has spawned a monster with a thousand heads. The complexity of licences and combinations of licences in works has expanded exponentially
This plane of organisation ensures that legal licences and lawyers remain key nodal and obligatory passage points within the Creative Commons network, and thereby constitute blockages in the flow of creativity. But what is happening is that the ethical practice of sharing communication and culture is being conflated with a legal regime that seeks bureaucratically to enforce the same result through comprehensively drafted and dense legalese." (http://www.freesoftwaremagazine.com/articles/commons_without_commonality/)
By Dmytri Kleiner: CC favors producers
1. The CC-licenses favors producers and not the consumers of a free culture, writes Dmytri Kleiner:
"The website of the Creative Commons makes the following statement about it's purpose:
- "Creative Commons defines the spectrum of possibilities between full copyright — all rights reserved — and the public domain — no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work — a 'some rights reserved' copyright." [Creative Commons.]
The point of the above is clear, the Creative Commons, is to help "you" (the "Producer") to keep control of "your" work. The right of the "consumer" is not mentioned, neither is the division of "producer" and "consumer" disputed. The Creative "Commons" is thus really an Anti-Commons, serving to legitimise, rather than deny, Producer-control and serving to enforce, rather than do away with, the distinction between producer and consumer.
The producer is invited by the Creative "Commons" to chose the level of control they wish to apply to "their" work, including such choices as forbidding duplication, derivate works and "commercial" use of the work, specifically providing a framework then, for "producers" to deny "consumers" the right to either create use-value or material exchange-value of the "common" stock of value in the Creative "Commons" in their own cultural production.
This is more than evident by the fact that, even had the Beatles and Gloria Gaynor published their work within the framework of the creative commons, it would still be their choice and not the choice of DJ Dangermouse or Javier Patro, whether "The Grey Album" or "Jesus Christ: The Musical" should be allowed to exist.
The legal representatives of the Beatles and Gloria Gaynor could just as easily have used Creative Commons licences to enforce their control over the use of their work.
Thus, the very problem presented by Lawrence Lessig, the problem of Producer-control, is not in anyway solved by the presented solution, the Creative Commons, so long as the producer has the exclusive right to chose the level of freedom to grant the consumer, a right which Lessig has always maintained support for.
The Creative Commons mission of presenting for the producer the "freedom" to chose the level of restrictions their work is published under stands in distinct and essential contrast to the mission of advocates of commons-based production: The denial of the distinction of producers and consumers, and the denial of the right of Producer-control of the common stock." (http://info.interactivist.net/article.pl?sid=06/09/16/2053224)
2. CC creates a Creative Anti-Commons:
From an interview on the [[Telekommunist Manifesto conducted by Marc Garrett:
"MG: In the Manifesto, there is a section titled 'THE CREATIVE ANTI-COMMONS', where the Creative Commons is discussed as an anti-commons, peddling a "capitalist logic of privatization under a deliberately misleading name." To many, this is a controversy touching the very nature of many networked behaviours, whether they be liberal or radical minded. I am intrigued by the use of the word 'privatization'. Many (including myself) assume it to mean a process whereby a non-profit organization is changed into a private venture, usually by governments, adding extra revenue to their own national budget through the dismantling of commonly used public services. Would you say that the Creative Commons, is acting in the same way but as an Internet based, networked corporation?
DK: As significant parts of the Manifesto is a remix of my previous texts, this phrase originally comes from the longer article "COPYRIGHT, COPYLEFT AND THE CREATIVE ANTI-COMMONS," written by me and Joanne Richardson under the name "Ana Nimus": http://subsol.c3.hu/subsol_2/contributors0/nimustext.html
What we mean here is that the creative "commons" is privatized because the copyright is retained by the author, and only (in most cases) offered to the community under non-commercial terms. The original author has special rights while commons users have limited rights, specifically limited in such a way as to eliminate any possibility for them to make a living by employing this work. Thus these are not commons works, but rather private works. Only the original author has the right to employ the work commercially.
All previous conceptions of an intellectual or cultural commons, including anti-copyright and pre-copyright culture as well as the principles of free software movement where predicated on the concept of not allowing special rights for an original author, but rather insisting on the right for all to use and reuse in common. The non-commercial licenses represent a privatization of the idea of the commons and a reintroduction of the concept of a uniquely original artist with special private rights.
Further, as I consider all expressions to be extensions of previous perceptions, the "original" ideas that rights are being claimed on in this way are not original, but rather appropriated by the rights-claimed made by creative-commons licensers. More than just privatizing the concept and composition of the modern cultural commons, by asserting a unique author, the creative commons colonizes our common culture by asserting unique authorship over a growing body of works, actually expanding the scope of private culture rather than commons culture." (http://www.furtherfield.org/features/interviews/interview-dmytri-kleiner-authour-telekommunist-manifesto)
By the Debian Free Software Project
The Debian Legal Team says CC should not be used for software programs. The source gives a detailed critique, of which we only reproduce the recommendations.
Recommendations for Authors
"debian-legal contributors recommend that authors who wish to create works compatible with the Debian Free Software Guidelines should not use any of the licenses in the Creative Commons license suite.
Authors who use or are planning to use a Creative Commons license that includes the NonCommercial or NoDerivs license elements should understand that these restrictions are incompatible with Free Software.
Authors who use or are planning to use the Attribution 2.0 license should consider a similar Free Software license such as a BSD- or MIT-style license [BSD], [MIT].
Authors who use or are planning to use the Attribution-ShareAlike 2.0 license should consider a similar Free Software license such as the GNU General Public License [GPL]. Recommendations for Creative Commons
debian-legal contributors believe that problems with the Creative Commons licenses that include the NoDerivs or NonCommercial license elements cannot be fixed without changing the apparent purpose of the licenses.
The Attribution and Attribution-ShareAlike licenses, however, seem to be intended to make works Free in a way compatible with the DFSG. For this reason, we make the following suggestions for future versions of the Attribution and Attribution-ShareAlike licenses that, barring other changes, should make the licenses compatible with the DFSG.
1. Limit scope of requests to remove references. The intention of the clause for removing references to a licensor seems to be that authorship credits should be removed. This should be specified, rather than "any reference". Some suggested text for section 4a:
If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any authorship credit for such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any authorship credit for such Licensor or the Original Author, as requested.
2. Waive attribution after request to remove references. It should be made explicit that if the Licensor requires that references to them be removed, this excuses the licensee from the requirements for attribution. A modification to section 4b might be:
[...] by conveying the name (or pseudonym if applicable) of the Original Author if supplied and no request has been made to remove it; [...]
3. Allow access-controlled private distribution. The anti-DRM clause should be changed to make it clear that the licensee can't prevent others receiving the work from exercising the same rights that the licensee has.
4. Allow distribution of rights-restricted copies of works if unrestricted copies are also made available. The following modified version of the anti-DRM clause in section 4a may be a good starting point.
You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that prevent the recipient from exercising the rights granted to them by section 8a and section 3 of this License, unless you also distribute, publicly display, publicly perform or publicly digitally perform the Work for the same recipient without those measures.
5. Require "credit for comparable authorship" rather than "comparable authorship credit". This makes it clear that the Licensor should be credited in proportion to their contribution, rather than equally to all other authors.
6. Specify "other credit". Licensors should receive some credit, but adding their name wherever any credit is made is excessive and inaccurate. Suggested text:
[...] at a minimum such credit will appear where other credit for comparable authorship appears and in a manner at least as prominent as such other credit for comparable authorship.
7. More clearly identify non-license trademark restrictions. The trademark restrictions should be clearly labelled, in text and not in the comments, as not part of the license. Separating the organization's trademark policy into another, linked document would be clearer still.
8. Rephrase overreaching trademark restrictions. The trademark restrictions should be relaxed or rephrased so that licensors and licensees are not denied rights to the Creative Commons trademarks they would have if they did not use the licenses. Suggested text:
Creative Commons grants everyone a license to use the trademark "Creative Commons" and related trademarks and logos to indicate to the public that the Work is licensed under the CCPL. Creative Commons reserves all other rights to its trademarks under trademark law; nobody may use the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons, except as allowed under trademark law.
Note that new versions will be evaluated on their own, and problems introduced in the new version or that weren't covered in this summary may still make the licenses incompatible with the DFSG. In other words, these suggestions come with no guarantees." (http://people.debian.org/~evan/ccsummary)
The Creative Commons movement as capitalist assimilationism
"The dissidents of intellectual property have had a rich history among avant-garde artists, zine producers, radical musicians, and the subcultural fringe. Today the fight against intellectual property is being led by lawyers, professors and members of government. Not only is the social strata of the leading players very different, which in itself might not be such an important detail, but the framework of the struggle against intellectual property has completely changed. Before law professors like Lawrence Lessig became interested in IP, the discourse among dissidents was against any ownership of the commons, intellectual or physical. Now center stage is occupied by supporters of property and economic privilege. The argument is no longer that the author is a fiction and that property is theft, but that intellectual property law needs to be restrained and reformed because it now infringes upon the rights of creators. Lessig criticizes the recent changes in copyright legislation imposed by global media corporations and their powerful lobbies, the absurd lengths to which copyright has been extended, and other perversions that restrict the creativity of artists. But he does not question copyright as such, since he views it as the most important incentive for artists to create. The objective is to defend against IP extremism and absolutism, while preserving IP’s beneficial effects.
In his keynote at Wizards of OS4 in Berlin, Lessig celebrated the Read-Write culture of free sharing and collaborative authorship that has been the norm for most of history. During the last century this Read-Write culture has been thwarted by IP legislation and converted to a Read-Only culture dominated by a regime of producer-control. Lessig bemoans the recent travesties of copyright law that have censured the work of remix artists like DJ Dangermouse (The Grey Album) and Javier Prato (Jesus Christ : The Musical). Both were torpedoed by the legal owners of the music used in the production of their works, as were John Oswald and Negativland before them. In these cases the wishes of the artists, who were regarded as mere consumers in the eyes of the law, were subordinated to control by the producers - the Beatles and Gloria Gaynor, respectively - and their legal representatives. The problem is that producer-control is creating a Read-Only culture and destroying the vibrancy and diversity of creative production. It is promoting the narrow interests of a few privileged "producers" at the expense of everybody else. Lessig contrasts producer-control to the cultural commons - a common stock of value that all can use and contribute to. The commons denies producer-control and insists on the freedom of consumers. The "free" in free culture refers to the natural freedom of consumers to use the common cultural stock and not the state-enforced freedom of producers to control the use of "their" work. In principle, the notion of a cultural commons abolishes the distinction between producers and consumers, viewing them as equal actors in an ongoing process.
Lessig claims that today, as a result of commons-based peer-production and the Creative Commons project more specifically, the possibility of a Read-Write culture is reborn. But is the Creative Commons really a commons ? According to its website, Creative Commons defines the spectrum of possibilities between full copyright - all rights reserved - and the public domain - no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work - a "some rights reserved" copyright. The point is clear : Creative Commons exists to help "you," the producer, keep control of "your" work. You are invited to choose among a range of restrictions you wish to apply to "your" work, such as forbidding duplication, forbidding derivative works, or forbidding commercial use. It is assumed that as an author-producer everything you make and everything you say is your property. The right of the consumer is not mentioned, nor is the distinction between producers and consumers of culture disputed. Creative Commons legitimates, rather than denies, producer-control and enforces, rather than abolishes, the distinction between producer and consumer. It expands the legal framework for producers to deny consumers the possibility to create use-value or exchange-value out of the common stock.
Had the Beatles and Gloria Gaynor published their work within the framework of Creative Commons, it would still be their choice and not the choice of DJ Dangermouse or Javier Patro whether The Grey Album or Jesus Christ : The Musical should be allowed to exist. The legal representatives of the Beatles and Gloria Gaynor could just as easily have used CC licenses to enforce their control over the use of their work. The very problem of producer-control presented by Lessig is not solved by the Creative Commons "solution" as long as the producer has an exclusive right to choose the level of freedom to grant the consumer, a right that Lessig has never questioned. The Creative Commons mission of allowing producers the "freedom" to choose the level of restrictions for publishing their work contradicts the real conditions of commons-based production. Lessig’s use of DJ Dangermouse and Javier Patro as examples to promote the cause of Creative Commons is an extravagant dishonesty.
A similar dishonesty is present in Lessig’s praise of the Free Software movement because its architecture assures everyone (technologically as well as legally, in the form of its licenses) the possibility to use the common resource of the source code. Despite its claim to be extending the principles of the free software movement, the freedom Creative Commons gives to creators to choose how their works are used is very different from the freedom the GPL gives to users to copy, modify and distribute the software as long as the same freedom is passed down. Stallman recently made a statement rejecting Creative Commons in its entirety because some of its licenses are free while others are non-free, which confuses people into mistaking the common label for something substantial when in fact there’s no common standard and no ethical position behind the label. Whereas copyleft claims ownership legally only to relinquish it practically, the references to ownership by Creative Commons is no longer an ironic reversal but real. The pick and choose CC licenses allow arbitrary restrictions on the freedom of users based on an authors’ particular preferences and tastes. In this sense, Creative Commons is a more elaborate version of copyright. It doesn’t challenge the copyright regime as a whole, nor does it preserve its legal shell in order to turn the practice of copyright on its head, like copyleft does.
The public domain, anticopyright and copyleft are all attempts to create a commons, a shared space of non-ownership that is free for everyone to use. The conditions of use may differ, according to various interpretations of rights and responsibilities, but these rights are common rights and the resources are shared alike by the whole community — their use is not decided arbitrarily, on a case by case basis, according to the whims of individual members. By contrast, Creative Commons is an attempt to use a regime of property ownership (copyright law) to create a non-owned, culturally shared resource. Its mixed bag of cultural goods are not held in common since it is the choice of individual authors to permit their use or to deny it. Creative Commons is really an anti-commons that peddles a capitalist logic of privatization under a deliberately misleading name. Its purpose is to help the owners of intellectual property catch up with the fast pace of information exchange, not by freeing information, but by providing more sophisticated definitions for various shades of ownership and producer-control.
What began as a movement for the abolition of intellectual property has become a movement of customizing owners’ licenses. Almost without notice, what was once a very threatening movement of radicals, hackers and pirates is now the domain of reformists, revisionists, and apologists for capitalism. When capital is threatened, it co-opts its opposition. We have seen this scenario many times throughout history — its most spectacular example is the transformation of self-organized workers’ councils into a trade union movement that negotiates legal contracts with the owners of corporations. The Creative Commons is a similar subversion that does not question the "right" to private property but tries to get small concessions in a playing field where the game and its rules are determined in advance. The real effect of Creative Commons is to narrow political contestation within the sphere of the already permissible.
While narrowing this field of contestation, Creative Commons simultaneously portrays itself as radical, as the avant-garde of the battle against intellectual property. Creative Commons has become a kind of default orthodoxy in non-commercial licensing, and a popular cause among artists and intellectuals who consider themselves generally on the left and against the IP regime in particular. The Creative Commons label is moralistically invoked on countless sites, blogs, speeches, essays, artworks and pieces of music as if it constituted the necessary and sufficient condition for the coming revolution of a truly "free culture." Creative Commons is part of a larger copyfight movement, which is defined as a fight to keep intellectual property tethered to its original purpose and to prevent it from going too far. The individuals and groups associated with this movement (John Perry Barlow, David Bollier, James Boyle, Creative Commons, EFF, freeculture.org, Larry Lessig, Jessica Litman, Eric Raymond, Slashdot.org) advocate what Boyle has called a smarter IP, or a reform of intellectual property that doesn’t threaten free speech, democracy, competition, innovation, education, the progress of science, and other things that are critically important to our ( ?) social, cultural, and economic well-being." (http://multitudes.samizdat.net/Copyright-Copyleft-and-the.html)
The perverse effects of CC in the developing world
In short: in raises awareness of the need to comply with copyright.
Citations from Marco Fioretti, reproduced by Leigh Blackall:
"The 4 page reader from the March issue of Linux Format is an excellent and concise round up of the wide range of perspectives towards the Creative Commons and copyright generally.
I very much appreciate the view of Frederick Noronha a journalist in India:
“There is an overall culture of sharing knowledge here, even if this isn’t called ‘Creative Commons’. We had the launch of CCIndia in early 2007, but there seems to be little activity there… I think CC is a bit too conservative and too respectful of copyright issues. Copyright has not worked for us (in the developing world) for generations. Generally speaking, copyright in any form, including CC, doesn’t fit in too well with Asian ideas of knowledge, since it enables those controlling knowledge and information over the rest, and we find it impossible to emerge winners in this game. It is a colonial law, not meant to serve the interest of the people of those parts of the globe that are not ahead in the information race! Why should we be as respectful to it, as, say, Lawrence Lessig is?”
And I sympathise with the so called “radical” view expressed by Minhaaj R Rehman:
“Nobody in Pakistan knew about copyright, copyleft or CC a decade ago. Even when academics knew about copyright, they just didn’t deal with it, primarily because of eastern tradition and religious injunctions of collectivism and open literacy. CC and copyleft movements have made it harder, here in Pakistan at least, for poor students and educators to use books. Sure, they inspired academics to copyleft their work, but at the same time, they convinced them that copyright, which should never exist in the first place, is good.
Whereas content never belongs to anyone, as it comes from previous experience and incremental learning. Here in the east we need to abolish copyright, nothing less. That’s why I don’t think CC is good for developing countries. To me, even things like Richard Stallman’s FSF accepting support from organisations like Unesco (which do nothing to fight the problems I just mentioned), or Wikipedia’s profiteering by asking for donation of $6 million this year are proofs that both copyright and copyleft are partners in restricting human rights and freedom”." (http://learnonline.wordpress.com/2009/02/19/the-tragedy-of-the-commons-not-the-book-by-marco-fioretti-2009/)
Source: Marco Fioretti. The Tragegy of the (Creative) Commons. URL = http://www.linuxformat.co.uk/pdfs/download.php?PDF=LXF116.feature2.pdf
- Updated via Heather Ford's Zotero account, at https://www.zotero.org/groups/cc_critiques
Berry, D. M. (2005 7). On the “Creative Commons”: a critique of the commons without commonalty. Free Software Magazine, (5). Retrieved from http://www.freesoftwaremagazine.com/articles/commons_without_commonality
Berry, D. M., & Moss, G. (2006). The politics of the libre commons. First Monday, 11(9). Retrieved from http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/viewArticle/1403/1321
Downes, S. (n.d.). What’s Wrong With Creative Commons ~ Stephen’s Web. Retrieved November 27, 2010, from http://www.downes.ca/post/54161
Elkin-Koren, N. (n.d.). Creative Commons: A Skeptical View of a Worthy Pursuit. SSRN eLibrary. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885466
Elkin-Koren, N. (n.d.). What Contracts Can’t Do: The Limits of Private Ordering in Facilitating a Creative Commons. SSRN eLibrary. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=760906
Hill, B. M. (2005 6). Towards a Standard of Freedom: Creative Commons and the Free Software Movement. Retrieved November 29, 2010, from http://mako.cc/writing/toward_a_standard_of_freedom.html
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McCann, A. (2005). Enclosure without and within the ‘information commons’. Information & Communications Technology Law, 14(3), 217. doi:10.1080/13600830500376972