CC-NC considered harmful

http://esr.ibiblio.org/?p=4559

by kumarshantanu • 14 years ago

69 47 14 years ago

esr.ibiblio.org

greggman• 14 years ago

While we're at it they need to remove the morality clause

In addition to the right of licensors to request removal of their name from the work when used in a derivative or collective they don't like, copyright laws in most jurisdictions around the world (with the notable exception of the US except in very limited circumstances) grant creators "moral rights" which may provide some redress if a derivative work represents a "derogatory treatment" of the licensor's work.

It effectively makes CC pointless. The whole point of CC is to declare that you don't need to ask the author's permission because he's already given it to you but the moral clause means he really hasn't given you permission and can deny you permission for any reason whatsoever.

That effectively makes CC no different as just plain all-rights-reserved where you need to ask.

binarycrusader• 14 years ago

I don't see that as a clause so much as a disclaimer. But the real trouble is that some countries don't allow an author to surrender their moral rights. I believe Germany is one of those.

So whether the CC license mentions it, in some countries it still matters.

rafitorres• 14 years ago

> But the real trouble is that some countries don't allow an author to surrender their moral rights

Correct. This is what happened in Puerto Rico. In preparation for the Puerto Rico version of CC, the University of Puerto Rico Cyberclinic did a comparative study of moral rights across the world: http://mirrors.creativecommons.org/international/pr/moral-ri... which is pretty informative.

masklinn4• 14 years ago

> I believe Germany is one of those.

France is as well, there's no such thing as "copyright" there instead there's an "author's right", which is split in "Estate Rights" and a "Moral Right".

Estate rights are about the economic exploitation of the work: its sale, its reproduction, its usage, etc... This is the most similar part to the UK's copyrights in that it's about property and it expires when the work falls into the public domain.

Then there's the moral right, which is about the authorship relation: the work is found to be part of the author, and the other way around. The moral right is closely related to the right of publicity.

morsch• 14 years ago

ESR argues that CC-NC is problematic because commercial activity is hard to define in strict terms. I agree with this premise, though CC licensing is hardly the only case where we're facing the problem of defining where commercial activity starts.

That said, for many authors the choice won't be between CC BY-NC and the more permissive CC BY, it's between CC BY-NC and a non-copyleft license. So we might just end up with less content under a free license. I'm not sure if conceptual purity is worth it.

drostie3• 14 years ago

I talked about this at one point with a band named Jim's Big Ego, which had released their album They're Everywhere on CC-BY-NC. On the one hand, you want to make the radio stations and the big movies and the studio compilation albums pay royalties; on the other hand you want to let bloggers publish the songs on ad-supported blogs, and you want to let independent artists cover and remix the songs, even if they post their remixes on ad-supported YouTube channels. The exact goal of the NC attribute is peculiar to our transitional stage: it is attempting to embrace the Old Media Model for the corporations that are stuck inside it, while being free to use in the New Media Model.

masklinn4• 14 years ago

> The exact goal of the NC attribute is peculiar to our transitional stage: it is attempting to embrace the Old Media Model for the corporations that are stuck inside it, while being free to use in the New Media Model.

I can't agree with that. The exact goal of the NC attribute is to make money from others making money out of your work but to let people who don't make money out of your work not have to pay.

That has nothing to do with "old media" and "new media", and is orthogonal to them.

tsahyt• 14 years ago

I completely agree with you. When I'm not hacking, I'm a musician. I'm currently beginning work on an album and thought about putting it under a free license. However, this album will roughly be half a year of full-time work (yes, that kind of work can be horribly time consuming), since I'm doing everything myself, from start to finish. This is why I plan on selling it, most likely on a donation basis. The free license doesn't keep me from doing so while still providing all the niceties of copyleft licenses.

There's just one thing: I don't want others to profit from my work. Listeners can get the album from wherever they want, do whatever they want to it or with it, I don't care. I suspect that if they like it, they'll drop me some form of donation and if they can't afford it, I'm also happy with a simple "thank you". But I definitely don't want my works to end up as cash in someone elses pocket, so that's why would be choosing a CC-NC license. If that goes away, I'll have to come up with my own license, or just use a non-copyleft license, whatever is easier and cheaper for me.

Now don't get me wrong, I'm all for sharing. Music is meant to be shared. That's why I want to encourage people to give it to their friends, hence the free license.

There are quite a few similar use cases for a NC license, so we should rather look into the issue of where "commercial" starts, rather than removing the NC license and losing potential free works.

I hope that makes any sense at all.

tedunangst2• 14 years ago

There are other words you can use. You can grant people a nonexclusive license to redistribute unmodified copies of the work without cost.

fhars• 14 years ago

I for one just don't understand what rights a CC-NC license grants me and am consequently forced to treat all those works as licenced under an non-free but still gratis licence anyway. No loss there if they were released under a license that actually says what it means instead.

danso• 14 years ago

I agree that NC is confusing but I put it on all my Flickr photos that I share. If someone asks me for permission to print in a commercial context, I usually grant it, but here's why I do NC:

1) If it's a company that has money and is all to ready to give me some, I'll gladly take it.

2) If it's someone, such as an author who wants a photo to illustrate their book, I may not ask for money but I like knowing who is using my photo in that context.

3) I know I'm not at fault if someone misinterprets CC as "the original photographer acquired the rights to use the identifiable people in any commercial contexts", but I still want to avoid as much as possible being drawn into this kind of snafu: http://www.smh.com.au/news/technology/virgin-sued-for-using-...

petercooper3• 14 years ago

As someone who uses Creative Commons-licensed content from time to time, I've tended to steer clear of NC because of the confusion too.

A common interpretation (and the one I used to use myself) was that the non-commercial protection was meant to cover use of content as a fundamental piece of a commercial venture. So a photo on a t-shirt, a song being sold on a compilation CD, etc. But using a photo within the context of a blog post on a commercial blog would be ok.

It seems, though, another interpretation is that any usage that's even vaguely related to a commercial interest is verboten. And since no-one has drawn the line in the sand on this, I'll steer clear of NC stuff now unless it really is a hobby project.

icebraining• 14 years ago

You could just send an email to the author asking for clarification, though.

akldfgj3• 14 years ago

> But using a photo within the context of a blog post on a commercial blog would be ok.

This is clearly forbidden by NC.

droithomme• 14 years ago

Arguments that people shouldn't be able to license their own personal creations however they like are anti-freedom.

Every year the arguments against artists having any control of their original work get more and more absurd, and more vicious. I may write a story and not mind if people repost it, but I don't want it used to promote Neo-Nazi organizations, so I retain moral rights. Now I am told that doing so is "Orwellian"? Best to avoid all this copyleft stuff altogether given that if you try to retain any rights at all over your own work the groupthinkers will attack you as being a fascist, when it is they who are the true fascists.

Only today R.E.M. announced they had a moral objection to Fox News using their work "Losing My Religion" to attack the Democratic Party.

http://www.hollywoodreporter.com/earshot/rem-demands-fox-new...

Do they have the right to stop Fox from using their work to promote propaganda they are deeply morally opposed to? Probably not, because the US doesn't recognize moral rights of authors and artists as most European nations do. This song is licensed under BMI licensing, which is available to anyone who pays the standard fees. Should we say that R.E.M. are Orwellian fascists who are opposed to free speech because they have publicly announced their displeasure regarding this situation? To do so seems to me to be an insane, crazed position to take, one which attacks the foundations of artistic freedom.

derleth2• 14 years ago

So artistic freedom means you get to restrict the artistic rights of others, even if they play by all the rules otherwise?

nullc• 14 years ago

ESR isn't arguing that you shouldn't be able to license your things however you like. He's arguing that creative commons should not promote a license which has surprising negative risks and that they shouldn't associate their brand with a license which is bad for society compare to the most likely alternatives.

hollerith4• 14 years ago

I am going to go off-topic a little bit and comment on the application of CC and similar licenses to TEXT specifically.

Although I am a big fan of open-source licenses for code and open to the possibility that they will do good when applied to photographs, animations and videos, I doubt that applying Creative Commons licenses to TEXT has done more good than harm.

Despite efforts by Google to counteract them, I still waste a little time every week or so exploring Google hits that turn out to be SEO spammers re-using Wikipedia's CC-licensed text. And I do not see enough benefits to offset that sort of harm. In general, it seems to me that it harms readers when readers are subjected to text that has been re-used for some purpose that might differ drastically from the purpose or context of the original author of the text. I would prefer it if people who did not make the effort to put something in their own words did not even have the ability to put text onto my computer screen. Of course, there is no way to achieve that, but stopping the CC-licensing of text would cut down on it.

Certainly, there needed to be some way to assure contributors to, e.g., Wikipedia that Wikipedia would not monopolize their contributions for selfish or stupid ends, but I do not think a CC license (or the GFDL used before that) was anywhere near the optimal way to do that.

Maybe I should not state my opinion without having taken a close look at the effect of CC and similar licenses on textbooks and technical manuals, but I tend to think it is time to stop imploring WRITERS to CC-license their TEXT.

mcherm2• 14 years ago

Part of the benefit is the PRESENCE of that Wikipedia text.

I haven't contributed much to Wikipedia, but what little I DO contribute wouldn't be there if Jimmy Wales owned it all. Instead, it is available for anyone to reuse... for good OR for bad.

For instance, although I think Conservapedia is a stupid idea done by stupid people, the fact that they CAN fork it and create their own is important. In the (unlikely) event that Wikipedia is "taken over" by malign influences (for instance: sells out to the largest bidder, who starts exercising editorial control), I would want to make my own "Conservapedia"-like copy.

I completely disagree with you that rewriting is so easy. I couldn't rewrite Wikipedia, could you? Could any 1000 people in the world?

Forking an open-source project is quite rare, and usually a sign that the community has failed. But sometimes it is the only means to save the project; LibreOffice stands out as an example. The EXISTENCE of that option (even if almost never exercised) is a powerful force of its own, and the same is true of text as is true of code.

hollerith4• 14 years ago

Thanks for engaging with my comment. (Upvoted.) Here are some counterargument to some of your points.

It has been years since Jimmy owned or controlled Wikipedia. Sure, the existence of a non-profit board with elections is no guarantee Wikipedia won't go bad, but I think you overestimate the usefulness of the CC license to those who would try to fork it if it does go ("has gone"?) bad.

>LibreOffice stands out as an example

Like I said although I strongly support open-source licenses for CODE (precisely because they allow forking). But I don't think the experience with code is particularly informative about text (or "prose" if you want a more precise word).

If Wikipedia's text were not freely redistributable, there'd be other ways of "forking" it (or more precisely, competing with it for the attention of the world's readers) besides rewriting from scratch. One can for example distribute a browser extension that replaces references to Wikipedia pages with pages from the "fork" if and only if a page in the "fork" exists.

My strongest counterargument is that the CC experiment and the Wikipedia experiment have been going on for at least 10 years now, and in the domain of their application to textual (or "prose") works, the most compelling actual development you can point to in support of them is Conservapedia (which, even if you approve of their mission, does not get enough traffic to count as a significant effect either good or bad).

In contrast, I can point to continuous harm (namely SEO spammers and just plain lazy folks who cannot be bothered to put thoughts in their own words, who are wasting the time of millions of readers).

mcguire• 14 years ago

"I haven't contributed much to Wikipedia, but what little I DO contribute wouldn't be there if Jimmy Wales owned it all. Instead, it is available for anyone to reuse... for good OR for bad."

Does anyone remember CDDB?

akldfgj3• 14 years ago

If occasional miscategorization by a search engine is a noticeable harm in your life, you're basically living in heaven and it's time to move onto charitable endeavors like world peace and food security.

lucb1e• 14 years ago

So we're allowing people to make money by using our software without paying, just because it might be confusing when they're making enough money that it's worth it (or even legal) to sue them? No thank you, NC option for me.

Not only are they using unpaid manhours and equipment it took to write and host the code, it probably also took a great deal of personal investment to learn how to do whatever the code does. If they are making profit that is fine, but be fair and share a small part. (And yes, I really would ask only a small part or perhaps even only credits – it's open-source after all and they're honest enough to contact me – but that's something entirely different from free.)

ggchappell• 14 years ago

Is it possible that the real problem is that the CC BY-NC license is not well explained?

The actual license (CC BY-NC 3.0 [1]) says, in section 4b:

> You may not exercise any of the rights granted to You in Section 3 above [2] in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

This is rather more precise than just saying "noncommercial". I'm not sure whether it's precise enough or not ... but it seemed worth pointing out.

[1] https://creativecommons.org/licenses/by-nc/3.0/legalcode

[2] These rights are the right to reproduce the work, to create adaptations of it, and to distribute or publicly perform the work or adaptations of it.

michaelhoffman• 14 years ago

> This ill-definedness is reflected in community debates about whether commercial means “cash transactions” or “for profit”, and it is the exact reason the Open Source Definition forbids open-source software licenses from having such restrictions.

I just don't particularly care about enabling people to use my work gratis for “cash transactions” or “for profit”. These people can contact me for a paid license. Or they can create a substitute themselves, no skin off my back.

confoosed• 14 years ago

Here's what's considered harmful, assuming you actually have concerns about whatever it is you're licensing[1]:

using a license that is a cut and paste job (i.e. you took it from the web, or some other source; i.e. it was not drafted for you and your work specifically).

1. If you don't really care much about what you're licensing, the license doesn't really matter. Probably 99% of programs fit this category. With "99%" of programs, no one gets wealthy, no one gets sued, the license has no real impact on anything, life goes on as if there had never been a license. And in most cases no one even reads these licenses. Hence things like the "shareware" license, the "beerware", the "dowhatthefuckyouwantto" license, the GPL, "Copyleft", "Ty Coon", and so on. These are mocking the entire practice of licensing. There's a reason for that.

And for many years even the ones who do care about licensing, e.g. Microsoft, would have licenses that contained unenforceable terms. But how many Windows users cared about reading a license?

If you really cared about licensing your software (e.g. you thought someone might get wealthy from the software, or someone might get sued), then you'd spend a few bucks to have a lawyer draft a license for you, specifically.

And if users really cared about the licenses they were agreeing to, they'd probably complain. Because some of the licenses, the terms they contain, are beyond unreasonable. They are so one-sided as to be unenforceable.

It's amusing how programmers who post comments on the web are so tuned in to licenses, but in reality they spend little effort/money when it comes to licensing. And that's OK, because with "99%" of software programs, it does not matter. It's irrelevant. No one gets wealthy, no one gets injured, no one sues. It's neither here nor there. Some cut and pasted text that no one reads is good enough.

But licenses do make a great subject for programmer chatter on the web. It never stops.

Truthfully, in the context of the web, at the end of the day, the license is not nearly as important as whether someone is going to sue. Because if she really wants to sue, and has the means to do so, a copy and pasted license is probably not going to stop her.

Food for thought.

Public domain.

CC-NC considered harmful

Related Stories