Creative Commons

Creative Commons

URL = http://creativecommons.org/

Created by Lawrence Lessig and now a worldwide movement to promote open access to intellectual content.

Origin and History

The background to the Creative Commons, by Business 2.0 at http://money.cnn.com/magazines/business2/business2_archive/2004/05/01/368240/index.htm

"At a cafe near his San Francisco home, Lessig explains the economic logic that underpins Creative Commons. He draws a timeline on a napkin, labeling one point "1888." "That's when the first Kodak camera was introduced," he says. "And around this time, a legal question arises: Do I need your permission to capture your image? The courts say no, I can pirate your image in most cases." Lessig then draws a line that spikes upward, representing the boom in photo equipment and processing sales that resulted from the liberalization of image content."Imagine if the decision went the other way, so that I had to get permission every time I took someone's picture," he says. "The growth of the photography industry would have been very different." And much less lucrative.

Lessig, 42, has spent the better part of the last decade battling legal decisions that "went the other way" in the digital age. A specialist in policy development for cyberspace, his career has taken him from the Supreme Court (where he clerked for Justice Antonin Scalia), to the University of Chicago, to a tenured position at Harvard Law School, and finally to Stanford, where he founded the law school's Center for Internet and Society. He made headlines in 1997 when he briefly served as a special master in the Microsoft antitrust case. (Microsoft launched a successful appeal to have him removed.)

In the 2002 Supreme Court case of Eldred v. Ashcroft, Lessig challenged Congress's 1998 decision to extend copyright protection to 70 years after an author's death. In that case, nicknamed the "Mickey Mouse trial" because it coincided with the Disney character's impending transition to the public domain, Lessig argued that most creativity--including Disney movies like Snow White, which was adapted from a Grimm fable--builds on previous work, and that the extension hurt society by limiting the amount of raw material available for creative reinvention. He lost.

The defeat triggered a change in tactics. Unable to reform copyright law, Lessig focused instead on facilitating contractual arrangements between sharers that could be implemented directly in HTML. That's the primary tool artists use to attach Creative Commons licenses to their work. Thanks to the Copyright Act of 1976, as soon as an original work is "fixed"--i.e., takes tangible form--it's automatically protected by copyright. Absent language to the contrary, distributing, copying, or performing that work without permission then becomes illegal. But with Creative Commons, an artist can place a link next to the work--or even embed a license in, say, an MP3 or PDF file--to explicitly grant the permission in advance.

To see how this works in practice, consider the experience of science fiction writer (and Business 2.0 contributor) Cory Doctorow. In January 2003, Tor Books published his hardcover novella, Down and Out in the Magic Kingdom. Simultaneously, Doctorow released the book as a free download on his website, hoping the electronic version would generate buzz and spur bookstore sales. "I didn't do this because I'm a big-hearted slob," he says. "I did it because I saw an opportunity to make more money."

With no formal legal training, Doctorow wanted to tell online readers that he intended to protect his work in a new way. So he linked the online version of his novella to a Creative Commons license. From a menu on the Creative Commons site (see "A Spotter's Guide to Shared Content," page 114), Doctorow chose a license called Attribution-NoDerivs-Noncommercial, meaning that people can distribute his book for free, so long as they credit him as its author; they're not allowed to use it as the basis for derivative works; and to retain his upside potential, such as a movie deal, he requires payment for commercial uses.

In the 15 months that the book has been available online, Doctorow has recorded more than 300,000 downloads from his site. It's impossible to measure the effect that had on book sales, but the initial print run of 8,500 copies sold out, and the title is now out in paperback. Doctorow estimates that the speaking fees he received from people who hired him based on the buzz surrounding the giveaway version exceed the advance he received from his publisher. Meanwhile, after the commercial success of his first book established his credentials as a marketable writer, Doctorow received a much bigger advance for his third and fourth books." (http://money.cnn.com/magazines/business2/business2_archive/2004/05/01/368240/index.htm)

Lawrence Lessig on the creation of the Creative Commons

Lawrence Lessig explains:

"Creative Commons was conceived in a conversation I had with Eric Eldred. I was representing Eric in his case challenging the United States Congress' Copyright Term Extension Act. Eric was enthusiastic about the case, but not optimistic about the results. Early on, he asked me whether there was a way that we could translate the energy that was building around his case into something positive. Not an attack on copyright, but a way of using copyright to support, in effect, the public domain.

I readily agreed, not so much because I had a plan, but because, naive lawyer that I was, I thought we'd win the case, and Eric would forget the dream. But nonetheless, long before the Supreme Court decided to hear Eldred's plea, a bunch of us had put together the plan to build the Creative Commons.

We stole the basic idea from the Free Software Foundation -- give away free copyright licenses. Because copyright is property, the law requires that you get permission before you "use" a copyrighted work, unless that use is a "fair use." The particular kind of "use" that requires permission is any use within the reach of the exclusive rights that copyright grants. In the physical world, these "exclusive rights" leave lots unregulated by copyright. For example, in the real world, if you read a book, that's not a "fair use" of the book. It is an unregulated use of the book, as reading does not produce a copy (except in the brain, but don't tell the lawyers).

But in cyberspace, there's no way to "use" a work without simultaneously making a "copy." In principle, and again, subject to fair use, any use of a work in cyberspace could be said to require permission first. And it is that feature (or bug, depending upon your perspective) that was the hook we used to get Creative Commons going.

The idea (again, stolen from the FSF) was to produce copyright licenses that artists, authors, educators, and researchers could use to announce to the world the freedoms that they want their creative work to carry. If the default rule of copyright is "all rights reserved," the express meaning of a Creative Commons license is that only "some rights [are] reserved." For example, copyright law gives the copyright holder the exclusive right to make "copies" of his or her work. A Creative Commons license could, in effect, announce that this exclusive right was given to the public.

We launched Creative Commons in December, 2002. Within a year, we counted over 1,000,000 link-backs to our licenses. At a year and a half, that number was over 1,800,000. At two, the number was just about 5,000,000. At two and a half years (last June), the number was just over 12,000,000. And today -- three months later -- Yahoo! reports over 50,000,000 link-backs to our licenses. "Link-backs" are not really a count of how many objects are licensed under Creative Commons licenses - a single license could cover 100,000 songs in a music database for example, or a single blog might have multiple instances of the license. But the growth does measure something: The uptake of Creative Commons licenses is growing fast, and indeed, far faster than I ever dreamed." (http://creativecommons.org/weblog/entry/5661)

Lessig expands on the historical-legal context in "How it all began", at http://creativecommons.org/weblog/entry/5668

Types of Creative Commons Licenses

Lawrence Lessig explains:

"Which freedoms the licenses offer is determined both by us (deciding which freedoms are important to secure through CC licenses) and by the creator who selects from the options we make available on our website. The basic components have historically been four: (1) Attribution (meaning the creator requires attribution as a condition of using his or her creative work), (2) NonCommercial (meaning the creator allows only noncommercial uses of his or her work), (3) No Derivatives (meaning the creator asks that the work be used as is, and not as the basis for something else), and (4) Share Alike (meaning any derivative you make using the licensed work must also be released under a Share Alike license).

These four options -- when each is an option -- produce 11 possible licenses. But when we saw that 98% of our adopters chose the "attribution" requirement, we decided to drop attribution as an option. That means we now offer 6 core licenses:

1. Attribution (use the work however you like, but give me attribution)

2. Attribution-ShareAlike (use the work however you like, but give me attribution, and license any derivative under a Share Alike license)

3. Attribution-NoDerivatives (use the work as is, and give me attribution)

4. Attribution-NonCommercial (use the work for noncommercial purposes, and give me attribution)

5. Attribution-NonCommercial-NoDerivatives (use the work for noncommercial purposes, as is, and with attribution)

6. Attribution-NonCommercial-ShareAlike (use the work for noncommercial purposes, give me attribution, and license any derivative under a ShareAlike license" (http://creativecommons.org/weblog/entry/5661)

Other Licences of a similar nature

Other Creative-expression related licenses:

The Free Art Licence is explained here, at http://artlibre.org/

A comparative graph of all licenses related to music, at http://www.musique-libre.com/, click on “Les licenses�? or here at http://www.musique-libre.org/static.php?op=copyleftLicence.html&npds=-1 The philosophy of free music explained at http://www.free-music.com/freemus.htm ; the Open Music Registry, temporarily shut down in 2004, has announced a re-opening, see http://www.openmusicregistry.org/

The Video Liberty project, at http://www.videoliberty.org/

The Open Publication License, at http://www.opencontent.org/openpub/

Critique on the Creative Commons licenses

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/

By Dmytri Kleiner

The CC-licenses favors producers and not the consumers of a free culture, writes

"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)

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.

From: http://people.debian.org/~evan/ccsummary

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)

More Information

Good summary of the different Creative Commons Licensing schemes and the legal concepts behind it, at http://creativecommons.org/about/licenses/ , http://creativecommons.org/about/legal/ . Common Content, http://commoncontent.org/, is an open catalog of Creative Commons content

A directory of CC-licensed content, Common Contents, http://commoncontent.org/

LegalTorrents, focuses on large files that can be downloaded with Bittorrent, at http://www.legaltorrents.com/index.htm

Some pro-CC advertorials to watch:

1. Building on the Past
2. Mix Tape