Creative Commons -- what I call "Creative Communism" destroys copyright protection and commerce, destroys value, and does not help artists to survive. It's a vast shill -- indeed a Big Lie, like the original communism of the Soviets. It was designed by people whose main agenda is to undermine capitalism and private property, and who have seized as their ideology the "cover" of seeming to encourage "sharing of content". There are many, many things wrong with the Creative Commons movement, and of course one of the chief ones is that people don't debate it critically, and can be discouraged from doing so.
Let me tell you a story of how I *should* have become a big believer in Creative Commons -- but didn't.
Back in the days when I played Sims offline and made Sims family albums as stories, I founded a group called SimAlbums where you can see some of the essays I posted to read if you join the group (it's no longer active but I keep it as an archive). Here's what happened: back in the dark days right after 9/11, one of the things I did with my kids was make various Sim Family Album "mash-ups". For example, we would take the game Mario, which had this character named "Bowser" who had this song and this bit he did where he had to climb up and down these endless stairs. We made him in the sims, we made an album, and attached a MIDI version of the song -- somehow, it was emblematic of those stairs in the World Trade Center or something. At some point, I wanted to find a picture of a blue sky with clouds to put to make the sky at the top of the stairs. So I hunted around and found a cloud picture on a web site selling prints of clouds, downloaded it, and put it into my Sims game. I noticed that the prints on this site were for sale, so I thought as a courtesy, when I made my screenshot of Bowser in the clouds, that it would be the right thing to credit the photographer and put a link to his site where the pictures were sold as large prints.
So there I was, making a "mash-up" as all the cool kids call it, a user-generated amateur thing, made out of a picture on the Internet. It absolutely never occurred to me at the time that this tiny usage of this picture on a Sims tile would somehow be construed as "theft". After all, I didn't offer it for sale, or in anything remotely resembling its full form as a print. It was a tiny thumbnail, and surely the traffic on my site with the link would drive more traffic to this guy's site and the pictures might sell.
To my shock and surprise, seeing this linkage to his site (that's how he was able to find out about my usage -- I linked to him!), this cloud picture-taker fell on me like a ton of bricks -- or rather the provider, tripod.com. Without contacting me first, he sent a takedown notice immediately to tripod, and an email to me. Tripod instantly took my entire site offline and sent me a routine notice. I was baffled as to why my entire site was down and didn't understand what as happening. If my tiny Sims tile wasn't for sale, what was the issue? I corresponded back and forth with tripod, and after something like a week, they put my site back up when I explained that the cloud screenshot was removed. Meanwhile, Mr. Cloud sent me one email more angry than the next, and demanded that I pay him $700 for the use of his cloud picture (!) -- even when the item was removed. I construed my usage of this picture as legal, and as falling within the doctrine of "fair use" -- a kind of reference. Why would anybody care about a tiny thumbnail of a picture in a Sim house?! I simply refused to be bullied. I kept asking about this everywhere, and trying to read up on the law on it.
Using the tiny version of this cloud in a Sim's house seemed no different to me than putting up a Life magazine photograph in my RL livingroom. It was personal use, and surely fair use -- it didn't involve resale. I found a court case that involved an auction house page that would carry little thumbnails of items for sale on various sites that was sued by some company -- but they prevailed, and won the right to have thumbnail references to other sites. I called this "right-clickers' rights" -- I couldn't comprehend, if you could right-click on a photo and use it for personal use in such a tiny and distorted version as a Sims house, why anyone could possibly try to extract $700 for me. I could understand even if his site offered, say, wallpaper or screensavers -- that might cost money. He might sell those, and people did at the time. But he wasn't doing that. No one mentioned Creative Commons; there was no such thing as a Creative Commons on his site; this was back in 2001, when CC was only just being formed.
I held my ground, and kept fighting Mr. Cloud, telling him that he was being a total ass trying to charge me $700, that my entire non-profit site had been forced to go down for 7 days at a time when I ran a popular site with adults and their kids making Sims stories, and that no harm to his business was intended or caused. If anything, I kept saying, I brought more attention to his site and he would sell prints. He ranted and ranted, in the worst kind of creator-fascist way. I kept studying up on this and referring to the court case with the auction house and others I found, and kept telling him that he was in fact only harming his reputation by picking on an amateur fan site. It never occurred to him to offer a Sims version of his cloud tile for some reasonable fee like $5 or $10; he wanted nothing less than $700 for this thumbnail lol. I kept arguing and finally he backed off. I kept reminding me that if his request had come to me initially asking me personally to remove the cloud because he felt it violated his copyright, I would have complied out of good will, even if I didn't understand his overreach. But his ordering a takedown of my site for a week, and his threatening me with a totally unreasonable fee or face a lawsuit, was simply despicable. Everyone in our group felt the same way.
I didn't grasp then, as I do now, that the ability to right-click isn't something that can be mechanically stopped -- some sites in fact didn't allow right-clicking by disabling the function, and I pointed that out. (You can get around that obviously with PSP or other programs).
So, you would think this experience would set me against people demanding to protect their IP on the Internet. It didn't. It didn't change my basic sense that yes, people have rights to sell stuff and expect that others not be able to sell it, yes they have a right to order takedowns, but they cannot overreach when the site in question is merely making a reference, and when it is not resale of a print or misrepresentation of the work without credit. Indeed, I linked to his site, gave him credit, and did not attempt a resale of his item even for "simoleons".
Ever after, I wondered: why is someone like this such an asshole, trying to terrorize amateurs, when they could accept fair use as helping their business? I *didn't* take "fair use" to mean "any and all copying everywhere for non-commercial use" (as it means now). And I began to wonder: why can't they make it easier to pay a small fee to use somebody's item without fear of reprisals?! THAT is what is needed.
Fast forward to Creative Commons in Second Life. From the very beginning, with Lawrence Lessig and Hamlet Linden Au all over it, I sensed a hoax. It was something that lefties did -- it was contrived and wouldn't likely catch on (they were hawking it in SL in 2004). I noticed that hardly anybody ever came to use the "CC license" machine on "Democracy Island" -- which gathered tumbleweeds from unuse. Nobody ever used CC in SL -- anywhere, even the freebie nuts (some of the put "GNU licenses" on their wares, but they could be a pain in the ass, as they still made their items "no mod," as the famous Jai Nomad did with her hugely prim-heavy homes).
And...Why would they? They have a perfectly good form of "DRM" if you will. Read the latest comments in this thread that shows just how robustly people still uphold the copy/mod/transfer regime in SL or see the usual piggish copyleftist mentality in action in response to desperate content creators facing rampant copying, especially on the new open sims-- one more week, and I'll be blogging on these topics again : )
Meanwhile, zoom out to the fundamentally flawed arguments of CC, that were initially perfectly captured back when it became more popular. The first one was argued in a perfectly reasonable article by John Dvorak titled Creative Commons Humbug -- and never adequately answered. I've added more.
1. You don't need CC to claim copyright. As we've often had to explain on this blog, your copyright is automatically given you under the existing Berne convention and your national law in many cases, i.e. the EU and U.S. Copright self-executes -- you don't need to register anything to claim it.
2. CC isn't what grants you any rights. It is not a legal body. It's just a non-profit with a gimmick. Non-profit bodies don't grant licenses. Governments do. Various licensing bodies in the professions are established like medical or bar associations that are backed up by states that have various board exams and such -- CC isn't anything like that. It's just a bulletin board. You download or copy its type of license to your website or on your book or record, and you have a "license". It is only as effective as the belief in it holds from some sort of enthusiastic community -- which CC's founders have, of course, mercilessly flogged.
3. You don't need CC to share. In order to share you just...share. The Internet is a copy machine -- that's its default. People -- especially kids today -- copy heedlessly. You don't need CC to enable that function. If, on the other hand, you want to encourage getting credit for your freely-distributed work, you can write "(c)" under your photo or essay or book and say that non-commercial use is encouraged. That's all. No need to get encumbered by silly complex CC licenses. There are multiple kinds of them; people argue endlessly on what kind should be used for this or that situation; there are even now lawsuits about CC licenses, one even ruling in favour of a train maker not being allowed to grab a CC design without credit and resell it commercially. But...CC was not required to launch that lawsuit. CC is an add-on.
4. CC in fact discourages the social injunction that used to be taught in families and schools and workplaces that people must be credited for their work as a given, that you never quote something in a paper or a work or a situation without giving credit to the author. "Fair use" and "credit" were something that were instilled into everyone as a social norm and widely understood. You could face serious charges of plagiarism and be expelled from school or disqualified from a course or exam if you failed to observe this law. But by making this a "license" that has to be dispensed, received, and posted, it takes away the cultural norm and substitutes it with the fetish of the license icon. People invest the fetish, and not their teachings, with the power to "protect". That inclines people to think that if they do NOT see the CC icon, they can do what they want. And that's not true -- they can't. And they should give credit in fair use.
5. Absence of CC in fact does not hinder sharing, but its presence certainly does hinder sales. Over and over again, people like Spin Martin think they "need" CC in order to encourage sharing, so that people don't have to hesitate or be confused about what to do and whether they can take a cloud picture for their Sims game. Somebody like Spin or Robert Scoble *wants* you to put their pictures into your Sims game -- they think it's cool. They just want mention of their name somewhere as the author. And they think CC covers this for them. But they've lost a sale. They try to pretend they don't want or need a sale -- but if there were an easy way to make a buck, they would no doubt use it if it could get the cool kids' blessing. They think they are somehow "hindered" by not having CC on their items and that somehow sharing is "discouraged" without this little fetish sign. But that's silly. It doesn't. People should in fact be taught to ask authors if they can use their photos precisely because confusion does endlessly arise even with CC licenses.
Example: I saw a photo of Philip with a space blanket around his bare shoulders sitting in his swim trunks typing on a laptop at Burning Man. It was quintessential Philip. It was used on Vint Falken's blog. The link she gave for it took me to someone's Flickr photo collection. But clicking there, I saw that it wasn't that person's photo, that they had copied it from somewhere else. I found the original photographer finally on his website where...he had did NOT have a CC license but he had a more standard notice that was of the type that said you could NOT copy it and use it without permission. Did Vint ask permission? Likely not, if she took it from the other guy who probably didn't ask either. Both of them, if they even saw the original site, may have seen figured there was the usual CC license and figured "oh, it's ok to copy it" -- but there wasn't any CC license. I couldn't figure out if the guy had in fact let Vint or the other collector use his photo -- his photos in fact were for sale. I thought about asking him for permission for non-commercial use, then got busy. Eventually I'll track this down -- but it's a perfect example, repeated many times every day, of the fact that a CC license means nothing, that there are too many of them, that they are not clear, that they are not necessary and that real people in the real world, even those shooting Burning Man photos of Rosedale, for Christ's sake, put up a standard, normal copyright notice AND SELL THEIR WORK, God bless 'em!.
6. The absolute WORST thing that CC does, however, is to undermine commerce.This is deliberate! This is unforgiveable! This why I call it "Creative Communism". Ever wonder why these people who claim you can make a living with CC don't enable you to have a license that stipulates "pay me here"?! Yes, the actual UNDERMINING of IP starts with the fact that there is NOT a license that says "you can copy me if you pay me, here's where to pay". Funny, that. There isn't any earthly reason for that. You can put PayPal or some other payment system in this day and age. If XStreet was able to use their site for collecting small charges of $2.00 or $1.00 by credit card (LL put an end to that functionaly when it bought it due to fears of chargebacks, I guess), if Amazon.com and other sites take small amounts like that without a problem, then CC could encourage this. It might even set up its own special account with PayPal or some other service and could have, if it had its head on straight, devised its own micropayments system that would have revolutionized the Internet and might have prevented the demise of newspapers.
But it didn't. That's because what CC ultimately is about is undermining private property. The creator is browbeaten into giving his items away for free. Everywhere, in the shill and the mysticism around CC, the mantra goes like this: share your stuff, give it away for free and...consulting will come back to you. Customization will come back to you. Uh...sale of licensing for jingles or machinima or movies will come back to you. Over and over again, people are guilt-tripped into offering their items for free, told them that the CC license will help bring them riches, like some kind of weird collectivism communist MLM pyramid scheme, and over and over again, nobody gets paid. Perhaps they sell one thing. Perhaps they get "exposure". Perhaps they con themselves into thinking they are partaking of some great give and take on the Internet that is "freeing culture". But by and large, most people with CC license do not get paid; it is only a very tiny percent who get paid a living wage.
7. Once given, Creative Commons licenses are irrevocable. Good Lord, why doesn't anybody EVER talk about this, except on obscure law journal pages?! These same bastards who talk about how evil it is for these dead white dudes to lock up copyright for 70 years are happy to lock up your non-paid status FOREVER. You can't change your mind. You can't go back and sell it *anyway* even if people still go on taking it for free. You are as crippled as you are with these silly opensource software licenses that never let you make a buck, all because of the eternal festering wound of Richard Stallman suffering the "lock-up" of his code once in a company. Honestly, it's just infantile. "Finders keepers, losers weepers".
8. Creative Commons recognizes the right, among some of the licenses, of others to take your work and re-release it in modified form for THEIR commercial benefit but it doesn't have a way for you to release it to make YOUR commercial benefit. Now seriously, people, is that fucked OR WHAT? Why don't even the CC hippies rebel at such a fake and exploitative set-up?! There's no reason for it! It feeds into the worst, worst forms of exploitative communism that force people to give for free, but enable others to make a profit, instead of acknowledging at the get-go that GETTING PAID is a normal and natural part of art work.
In most cases, those bragging that CC helps them make a living are using the CC shill in order to provide free loss-leading advertising, in order to pick up lecture fees (about the glories of living off CC lol!) or book deals (about free culture lol!) or various other types of gigs that are largely a function of them having plugged into a network that sustains this religious belief (Tim O'Reilly's books). I think Andrew Keen does an excellent job of putting together the stories and the citations of what a sham this is. Those millions of people on MySpace are getting led down the garden path. Very few bands offering downloads for free that start to number in the millions even in fact get the gigs to pay for themselves. They barely pay their travel and meal expenses for going to the gig. They do not live off CC.
A service called Magnatune got an awful lot of boosting from TechCrunch and others by grabbing the logo "We are not evil," echoing Google, and boasting that they didn't rip off artists, but helped them. They made them give away their tunes for free, however -- job one on the collective farm. (You can buy a CD, but the tracks are all there for free, too, and we have no way of knowing how many buy the CD out of actual decision to buy a CD, and how many buy it as part of a free culture cult following, like a roach clip). Then, they would put them together --hopefully --with movie makers and advertisers and others who needed a song or a track or a jingle, and charged licensing fees. So atop the whole fake giveaway empire, and the giveaways galore, basically what Magnatune does is sell a service whereby it gives you 50 percent of the take if it matches you with, say, a movie-maker who needs your tune. It could be providing this service *without* the free culture shill and the giveaways. It could be providing the groups exposure instead with micropayments, but doesn't for individual tunes (too much work unless you have high volume, I guess). Strip away all the copyleftist free culture hoo-hah, and what you have is a site that makes it easy for people who *want* to pay for licensed music to do so by clicking and paying.
Now...explain why we can't do that for everybody, all consumers, and not just movie companies?!
You never hear anything anymore about Magnatune, hyped so much a few years ago and still in business, but not really cited any more as any "model". It can't be. There is room for exactly one type of this sort of business based on the ideology of copyleftism and "don't-be-evil" anti-RIAA record business -- maybe two, but not really any more -- the sector just isn't that big of a sector. It's not a solution for most bands. Most bands will NOT sell a jingle or sound track to a movie. And, this is all hanging by a thread, because as soon as some thirdworldnik makes a movie that she can't distribute without people objecting that she didn't pay for the songs on the sound track, some people begin to demand that we all give everything away just because it's the groovy third world. Don't make them pay. Make us pay. Eat the rich, etc.
All of this is tremendously tiresome because *people aren't getting paid*. I don't know where David Pogue disappeared to, having been browbeaten himself by copyleftist cult-hero Kevin Kelly into offering his book for free in exchange for seeing if...sales were made of the hard copy (like the Cory Doctorow shill). Nobody ever REALLY tracks this stuff seriously, to see if, outside the little magic circle of the copyleftist lecture/book circuit itself, it can succeed.
In other words, if you start something like Bob Sucks, and you are known as a groovy "information wants to be free" copyleftist, and you have some dumb CD or t-shirt, your friends and some cool kids who happen think it's cool to push CC and copyleftism might in a sense send you a tip by buying your shirt. But...the next 20 Bobs who Suck will get nowhere. There isn't a market for it. It's not a solution.
Oddly enough, the Wharton professor so worried about on Techcrunch, all kinds of debates about this topic now, are increasingly referring to the virtual world currency and sale with microcredits as the wave of the future. Indeed it could be. There are people seriously working on Facebook currencies and a booming industry that not many people focus on is various micropayment and game token systems related to NetFlix and other services, most of which don't cash out to real money, but could if set up that way (entire workshops were devoted to these companies at Engage! Expo). This sector is getting more robust, it will shake out in a few years, and we will see the Facebook bucks that have people starting to pay each other for various things, perhaps at first only charities or pictures, in time for other things like having a good post or a good reputation.
This *has* to come, because people *have* to get paid. They cannot live on air. Creative Commons will be seen as a sidetrack, as a time-waster which wound people around in circles for a few years before they were able to shrug off Commissars Lessig and Doctorow and others preaching the copyleftist shill. More and more people will come forward to tell us that the comrade-emperors have no clothes. That only a tiny number get paid. That most people, as hard as they try to tell themselves they are "adding value" or "freeing culture" or taking communion in some vast cyberspace church, are feeling shafted, even bitter.
Increasingly, they will be wondering, as I have wondered for the last 8 years since looking at clouds from both sides now, why there isn't an easy system to PAY -- and in its place, merely an easy system to SHARE and undermine private property.
If you read Lessig's Free Culture (yes, I need to get back to my installment denunciation of this AWFUL book), you'll see that he diverges from the facts and engages in subtle subterfuge on nearly every page. While feigning to care about giving copyright, he takes it away (as CC does). He invokes this artificial notion of the dead weight of the past.
In fact, as I said in confronting this P2p Foundation gang in a long and rancorous debate, when people invoke this supposed dead weight of the 70-year copyright that they feel is crippling their creative freedom, they cannot cite any concrete examples. I cited my little cloud story. I could have paid $5 for my cloud tile, the way I paid various Sim furniture sites for really top quality content for my little Sims games. But...there was no way to do it. And I conceded, if asked to take down a cloud tile, that if that was the author's wish, I should respect it. Why not? It was excessive, it was over the top, but...it was *his cloud*. There was never, for me, any question whatsoever that his property rights should be destroyed.
After finishing Andrew Keen's The Cult of the Amateur, I had to conclude, although he doesn't quite come out and say it, that this cult heavily relies on everything being free, because if it had to be paid for...nobody would pay for the crappy amateur content. Especially with so much professional content out there! To get recognized, to take root, the culty amateur had to "free" everything so that by contrast, paid content wouldn't show him up. And he is never tested. Because the CC license is "eternal," he can't call it back and see if he *could* get paid.
Ultimately, my critique of Creative Commons doesn't need me to be persuasive, because Second Life itself is an abundantly clear example of what happens when a compay encourages users to make user-generated content, recognizes their IP, and lets them sell it: they don't need or want or use Creative Commons licenses.
That's why I hope to God Raph Koster doesn't cave to pressure from his peers in San Francisco in the Silicon Valley setting to make CC be the means by which IP and "sharing" is taken care of MP. There is no need for it to be imposed as a game function or inworld function, people are free to use it or not on their worlds (and I bet they will NOT unless they are groupies and copyleftists to start with, once the world gets big enough). I also hope fervently that it won't wind up being incorporated into the MMOX set-ups, although it's of course being pushed by that gang. As Joi Ito gets more involved in spimes, as Lawrence Lessig, who has now left CC to go push for "transparency in government" (i.e. "consulting my way to circles of power"), perhaps CC will languish and wither. One can only hope. It is crippling the future of paid content on the Internet that we could have once we get these social engineers out of the way and let the real businesses handle how people will make a living.
BTW, Magnatune has another hippie shill, which is a sliding scale of payments. So instead of paying a flat fee for the full download or CD, it offers you the chance to select -- $5, $10, $18, depending on how poor/generous you feel (!).
What do people fall for this?!
The site has an alexa ranking of 80,000, with 290,000 yesterday.
Posted by: Prokofy Neva | April 05, 2009 at 10:52 PM
NIN releases new album under Creative Commons License - http://theslip.nin.com
Posted by: Ann Otoole | April 06, 2009 at 01:42 AM
good post.
Ill bet Metap will be CC heavy.;)
kevin kelly had his head handed to him on his own site, though i wouldnt be surprised if the replys are now re-edited. Ive posted the link here before to his 10,000 fans blog before--even the heresay musicians noted claimed they cant make a living on online clipits and long tails of no cents...;)
Felicia (i love her-len;) Day was in SL tonight. When asked what was the best way to have a successfull webisode show, the answer floating in the sim was a JOSS whedon TV show:)lol
Some forget theSPOT.com and the first web 1.0 pop.coms and stan lee medias brimming with websisodic episodes by speilbergs and steve martins..etc etc. all the kings horses for courses..lol that showed that even big media creative "indies" may have long tail problems when interests that drive internet technology are coming from those who dont see any other property they cant make as having any value.
anyhow---and i know how you hate "creative efforts" beyond the white picket fence banal.;) you win one for the right brain gipper with this post.
but expect another 5 years before most of them can realize they sold their souls to adobe-er the devil;)er a TOS , er google? er.. CC in metaSLbluemultitube;)
rupert murdock is hearing from the WIRED CC boyz tonight:
http://blog.wired.com/27bstroke6/2009/04/murdoch-says-go.html
we dont want to pay to be FOX News stupid!. we want to be FREELY stupid to weekly watch his American Idol and DollHouse (whedon) shows:)
Rupert sadly now gets the "grown up" children he deserves.
1984-- im tellin ya--- Orwell happened and we all cheered at that apple commercial that showed it to us in a big picture at the most watched show of the year- the superbowl.
and they got "blade runner" MR. Dystopian CC metapunk hero artiste himself- Ridley Scott to direct it all:)
anyhow back to the show:)
Posted by: cube inada | April 06, 2009 at 01:44 AM
I understand what people hope to accomplish with Creative Commons. They want to give something away for free, yet retain full legal control over what is done with said free item.
Where it over-reaches is where they then try to exert control over what people can do with works derived from this completely free resource they have *chosen* to release to the world. That is where I have a problem with it.
Just imagine if this had been used in the past:
Einstein: "Here's the postulate to turning matter to energy. However you can only use it for making bombs, any use for peaceful purposes is prohibited by my license."
Caveman: "I just invented the wheel. I'm making it free to the world, but everything based on it must also be free."
The way the world works, people should be able to profit from their ideas, and knowledge is built on knowledge. If you suddenly start mandating that knowledge can not be profited from, two possibilities will materialize:
1) Knowledge which can not be profited from will be largely ignored and forgotten.
2) The Capitalist System will eventually collapse, as nobody will be able to profit from any innovations.
So I have to agree, the CC people must be communists, as they do seem to want to kill of Capitalism. I don't believe they want to relegate their works to the dust bin. However, in truth that will be the most likely scenario. Rejection of CC works is the only way to keep the Capitalist System pure and functioning.
Posted by: Darien Caldwell | April 06, 2009 at 11:52 AM
I appreciate that very important addition to my critique. In general, I feel as if we have to respect the wishes of the creator and if they have hobbled their creation by demanding that it be free and that we are forced to be passing it on, but we can't resell it, we're resigned to it up to a point.
If someone I commission and pay to make something explicitly asks me that they wish to have it remain free but not copyable, I feel I have to abide by that wish.
If someone distributes a freebie of the zillions of freebies out there of clothes and shoes and such designed to merely be loss-leaders to their store, I don't see that I should resell it.
But if some useful gadget that someone has made to be distributed everywhere to be useful, and it also gives them an automatic built-in credit by showing the author's name (which is why the CC license is simply unnecessary and extraneous for most of its stated purposes in SL), then I fail to see why I can't get some low price for it *because I'm displaying it and making it available on my tiered land*.
Even so, while I can abide by explicit wishes, I find the entire thing cries out for a robust critique, as you have given it. Indeed it does undermine capitalism and indeed that is precisely the idea, and one that Lessig, who always shrinks from being called a socialist or communist, need to account for. He is never confronted with it. He claims that tying up inventions with patents hobbles creativity. But "Freeing" it also hobbles commerce and payment of creators.
One of the "licenses" for CC offers the ability to give away something for free and indicate you don't mind if it is resold. But most people don't chose that because they feel absolutely no peer pressure to do so from the CC gang, and get absolutely no leadership on this from the CC leaders like Lessig or Ito.
The wealthy VC Joi Ito emphatically calls himself 'a venture communist". That's what's wrong with this bunch, they use the wealthy they've amassed from their tech businesses or inventions to undermine the very system that gave them that opportunity and those millions -- becaues they are heavily ideologically committed to a leftist view of a "better world" they feel is "progressive".
It's one thing to preach communism that involves taking other people's money; it's another to put it into practice with your own money, and that's why they get as far as they do, unfortunately.
I don't at all fear the CC as spreading and undermining capitalism, or that capitalism "will collapse" because I think the pushback is tremendous. SL is a good example -- nobody bothers with this ridiculous CC license and they make a buck or give stuff away with the DRM system such as it is, not even perceived as any annoying DRM to anybody (precisely because its mechanics involve "copy, no transfer" which is not physically possible in the real world with a CD).
Along the way, CC will do a lot of damage, mainly by knowledge getting lost that is not made practical and profited from through work and development, and undermining of people's capacity to earn. But people will push back, and are pushing back.
It definitely is a concerted effort to be creative with communism, to "slip it in" and make it appear as if it is not what it is. Lessig would try to parry your critique by saying, "But we have a license that does that." The reality is -- people don't use it. And if they want to profit from their inventions through micropayments, Comrade Larry doesn't let them because he doesn't like them or believe in them, like Clay Shirky doesn't like or believe them and rants that they are "impossible" to implement.
Posted by: Prokofy Neva | April 06, 2009 at 12:18 PM
"That inclines people to think that if they do NOT see the CC icon, they can do what they want."
Yes. This, this is the biggest harm all the CC malarky has accomplished. It has duped many people into thinking the content that the bloggers, flickr users, and the rest put up for -display only- is up for grabs.
I was once interested in CC until I had an experience that changed my mind. One of my photos was taken and under CC I could not complain. Sure the site gave credit. But that doesn't cover the RL costs that went into making the picture, the equipment, the time, the price of tickets etc. All of that is valuable and it extends into the final product. And it doesn't matter if the final essay, photo, drawing etc comes from an amateur or a professional, it deserves renumeration not just a "good boy!" pat on the head.
What I see with this CC, is a group of people who have climbed that ladder of success through luck, hard work and helped by All Rights Reserved protections. Then they are using CC to kick the ladder out from under the rest of us. So what will be then? Disney sure isn't going to CC their catalogue. I suppose these revolutionary souls want to force us, the little amateurs, to be CC and wait out the big corporations. That isn't going to happen.
Posted by: melponeme_k | April 06, 2009 at 02:32 PM
i'll admit, I'm not much of a Lessig hater (I've found him to be rather benign, if he wanted to be more of a demagogue he could be without a problem), though Cory Doctorow tends to weird me out.
But as a professional writer I have some strong feelings about CC that cut to both sides of the argument.
On one hand, I work for an organization that charges a premium for some content under traditional copyright, while much of my work is CC licensed (noncommercial-attribution). Do I like it? Not at all. I think there's an unprofessional nature to the CC license that demeans my work when someone can just life the whole thing as long as it's "non-commercial" use. Screw that, pay me. But others who pay the bills have other ideas, so I leave it alone.
On the other hand, I take a lot of photos. And most of the are CC licensed, attribution, share-alike. I don't care. I'm not that good a photographer. The pictures that I take, I take for me, not for anyone else. And if I take them for someone else, they're a work-for-hire and I can't license them myself anyway.
So what does CC mean for me? It's just a (long-winded) explanation of fair use rights you probably had anyway, that the author is choosing to explicitly grant you. If he wants to get paid, he should just keep it under Berne-style automagic copyright.
I guess I'm a bit of a late convert. I don't think that "information wants to be free" so much anymore insofar as that information comes from someone else's hard work. But if they want to explicitly grant rights, that's fine. You don't NEED a CC license to grant them, but the pre-written language makes things much easier.
Oh, as an aside? I wouldn't put Lessig and Doctorow in the same sentence. One is a tenured professor at Harvard and Stanford Law who clerked for Scalia and Posner makes his living teaching, and is considered a serious legal scholar who has argued before the Supreme Court, while the other has dropped out of multiple universities without a degree, released a book no one would buy, and...runs a web site.
Clerking for Scalia and Posner is not a job for an idiot. Running BoingBoing? I'll leave that one alone.
Posted by: AGF | April 06, 2009 at 05:06 PM
Lessig clerking for Scalia and Posner *means absolutely nothing to me*. This is constantly invoked to somehow justify and sanitize Lessig's reprehensible views and destructive ideological campaigns. You can mistake Fisking and fancy footwork and legal sophistry for "serious legal scholarship" until you actually sit down and go line by line, page by page, over Free Culture, and start analyzing it -- and easily debunking it -- as any intelligent person will be forced to do:
http://secondthoughts.typepad.com/second_thoughts/2008/12/liberating-free-culture-2-tinie-causby.html
One of the ways the fanboyz try to insulate Lessig from criticism that he is leftwing and even communist in some of his views is by citing this eternal "he clerked for Scalia and Posner" stuff. It's irrelevant. People get clerking jobs after law school. They get them where they get them. It has no bearing on their ideology later.
Cory is a popular culture superhero, not a legal scholar, but both of them are copyleftist rockstars and they both equally espouse the same ideological hacks.
You speak as people often do who generate both writings and photos. There's something about photos that many people "want to be free" because they say "I'm not that good" etc. as you do. Ok, well, then you shouldn't care if somebody copies your photo? And if you don't want to live in a world where that happens, be part of creating the culture of a social injunction, instead of the silly "license" totem.
If the "license" actually worked to spread the culture of a social injunction, that would be great, but all it spreads is the culture of "I don't need to be paid".
So you shouldn't be ambivalent about. You should be paid. Your organization is silly, and merely browbeaten by the PC gang. And if someone liked your photo and used it somewhere for something, a card, a poster, why couldn't they pay you something?
No, Lessig and company should never be forgiven for losing the historical opportunity to make a viable micropayments system that respected IP and made it easy and acceptable and fun for people to be paid. They really should be denounced for that. But it's not too late for some other group to come along and do this, and repudiate "Lessig as More" and get rid of all the hippie commie bullshit, and put in something that works. If you can pay for i-tunes, if you can pay for a used paperback on amazon.com if you can even pay for Magnatunes you can pay for everything! There are numerous payments systems out there, and the concept of microtransactions and virtual currencies is catching on everywhere. CC has to be overthrown on the way to making a viable system of payments for artists.
Posted by: Prokofy Neva | April 06, 2009 at 05:40 PM
Brilliant piece Prokofy (including your replies in the comments).
My background is having both a law degree and a philosophy degree, I have also taught at two universities across those disciplines, and with the benefit of that background and those experiences I am quite simply impressed at your knowledge, understanding and reasoning.
I've come to expect great things from your blog and even from your commenters and am rarely disappointed.
Thank you for the time you put into your posts :)
Posted by: Landsend Korobase | April 07, 2009 at 12:53 AM
For some reason it wouldn't let me post this properly, so here's my response:
http://pastebin.ca/1384785
Posted by: Gareth Nelson | April 07, 2009 at 08:18 AM
I think you have to understand a bit of the context. The CC essentially evolved from the GPL, and the GPL in turn was a rebellion against the problem of creative people having difficulty accessing capitalism. Essentially, being caught in the dilemma of "I have this idea, and now I can either: a) set up my own distribution and marketing system from scratch, which will cost me a fortune, and probably mean I make a net loss; b) get someone else to distribute and market it, but I'll get a fraction of the value, and they probably won't be interested because they know my only other option is to c) give it away for free, where the distributors and marketeers can hijack it without needing to pay me anything."
The GPL was intended to add another option, of giving something away for free without it being hijacked. I'm pretty sure that many people would have liked to add even more alternative options that would have allowed people to get paid, too, but nobody has managed to work out how to do that yet.
Your fear, that CC ultimately leads to bankruptcy and elimination, is very well grounded. But the opposing fear is that capitalism effectively leads to creative shutdown too, because every new idea must be justified in business terms, and this becomes harder and harder as existing good businesses become stronger. Coca-cola and Pepsi just don't need to sell any new drinks, but if you want to sell yours, you have to compete with them.. good luck.
Posted by: Yumi Murakami | April 07, 2009 at 12:43 PM
That's a load of crap, Yumi.
There is absolutely no reason in hell that you couldn't have the advantages of the Internet, with its lack of costs for manufacturing and distribution AND put on top of that *a payment system*.
If CC was REALLY about enabling artists to enter *a market* and *get paid* so they were "accessing capitalism," then they'd have them access capitalism. But they don't. Instead, they have them manufacture socialism, pressuring everybody to give everything away for free.
There wouldn't be any "cost" to having a payment system in terms of manufacturing or distributing costs, which you claim this was "all about". There'd only be the cost of the user who wishes to have the item to put on his website or print out or listen to.
There's no justification for saying you can't have user costs and this prevents "access to capitalism".
No, it's about intrinsically undermining the entire idea of private property, intellectual property as tied to commerce, and capitalism as a system that in fact is free and accessible.
"Nobody managed to work it out" because it was ideologically incompatible.
Capitalism doesn't lead to "creative shutdown". All around, there is creativity despite the costs. There are plenty of alternative soft drinks in the market.
And if you are going to make your arguments, stick to digital markets and don't suddenly switch to real-world commodities to make a false point.
You can always add one more mp3 or blog or book or picture on the Internet without any more cost than your ISP fees, and if that's too high, go the public library or Internet cafe.
Posted by: Prokofy Neva | April 07, 2009 at 12:59 PM
Let's try this again:
"You don't need CC to claim copyright"
As you say, this is automatic under the berne convention. Nobody who knows what they're talking about claims otherwise, let alone claims you need to use a creative commons license.
"CC isn't what grants you any rights"
The copyright holder is who grants you the rights. The mechanism they use is a license document that sets out in un-ambigious terms what rights they're giving to you. Of course, they could always write the license themselves from scratch, but unless they're an attorney specialising in copyright law they'll likely make subtle mistakes. Artists, musicians and programmers are NOT attorneys and should if possible turn to an attorney for qualified advice.
"You don't need CC to share"
There's a few points here:
1 - You can still share stuff even if doing so is utterly illegal. Connect to your favourite P2P network or BitTorrent tracker if you want to share ANYTHING in an illegal fashion.
2 - You can only share a copyrighted work LEGALLY if you have permission to do so from the copyright holder.
3 - Copyright holders can be contacted in individual situations to ask for permission, but when the copyright holder wants to encourage sharing, this quickly becomes a burden as everyone must contact them to ask.
4 - The way to solve the problem in point 3 is for the copyright holder to put a notice on the work explaining what is allowed.
5 - Most copyright holders have only a laymen's knowledge of the relevant copyright laws and may make subtle mistakes if they write their own license document from scratch.
6 - Paying an attorney to write your license for you from scratch is expensive
7 - Therefore, it makes sense to use a prewritten license such as the creative commons licenses. You don't NEED to use them, but it makes sense to do so.
"CC in fact discourages the social injunction"
Pretty much every last CC license states that people need to be credited for their work. However, absence of the license on one particular work does not mean that the opposite applies. Absence of a license actually is equivalent to a notice saying "Do not reproduce in any form this work".
"Absence of CC in fact does not hinder sharing, but its presence certainly does hinder sales"
It depends on your business model frankly. Realistically, if your business model is the traditional one of charging per copy and you release the same work that you're trying to charge for under a creative commons license, you probably will see sales drop on the for-pay version. Making money from free (as in freedom) content or software is possible but requires changing from the pay-per-copy model to custom work, support, ransomware or another more sensible model.
As to "absence of CC does not prevent sharing", that's accurate in so far as there's alternatives to a CC license, but you still need some form of license to share someone else's copyrighted work legally.
"The absolute WORST thing that CC does, however, is to undermine commerce"
No, a suitable license undermines the negative effects of copyright law - an artificial construct, nothing relating to real property at all. With the exception of the "no-commerce" CC licenses (which personally I consider to be none-free and refuse to use), none of the CC licenses say "thou shalt not make money from thy work".
Saying that people willingly choosing not to demand a government-granted monopoly are working against capitalism is laughable.
"Once given, Creative Commons licenses are irrevocable"
So are most proprietary EULAs (not all sadly, but most of them). If someone can revoke the license, it's pretty much useless as they can revoke it from you at any time. In some ways this may be worse than not having the license at all, if you're misled into building on top of the licensed content and the original author then revokes the license you have to stop your own work completely. However, if there's no license at all you can say "if I use this it'll be copyright infringement" and avoid it completely.
"Creative Commons recognizes the right, among some of the licenses, of others to take your work and re-release it in modified form for THEIR commercial benefit but it doesn't have a way for you to release it to make YOUR commercial benefit"
You as the copyright holder always have the full set of rights reserved by copyright law. When granting a license to others you only give them some rights but reserve the rest of them. You are never limited by the restrictions you place in the license given to others.
Posted by: Gareth Nelson | April 07, 2009 at 02:06 PM
Yumi Murakami - the GPL was created not because of "access to capitalism", it was created because of the need to prevent software from being locked up. If anything, the GPL is much more akin to capitalism than the standard proprietary EULA - nobody is able to use government force to shutdown others who infringe on your monopoly on that particular piece of software.
Creative commons i'm unsure on the ideological basis behind, but i'd put it more in the "open source" camp than the "free software" camp. Both camps are similar in many ways but differ in other quite major ways, and neither from what I can see is "anti-capitalist" per se, even if people delude themselves into thinking that they are.
Posted by: Gareth Nelson | April 07, 2009 at 02:11 PM
- Copyright holders can be contacted in individual situations to ask for permission, but when the copyright holder wants to encourage sharing, this quickly becomes a burden as everyone must contact them to ask.
THIS is why we have MACHINES.. to work tedious stuff for us... Not for us to work for a few who use machines....!!! duh the internet! whoduh thunk it!
this is the basis for how i licensed Starbase C3 as a networked creative scifi property in 1996... no CC or relgious furver needed at all.:) Just a good idea how to grow a creative product in the networked interactive age.
Posted by: cube inada | April 07, 2009 at 03:19 PM
Everything Gareth says is utter nonsense, because you can write on your website in plain English, please feel free to copy or use my stuff but give me credit or simply put (c) -- and that's all there is to it. Nothing complicated at all. If you think you need something more complicated, it's social media, duh, you put your email and say "write me for permissions for my stuff which I grant for most cases" or whatever. CC as an institution needs to be replaced with people's common sense notices and a system for micropayments. Perhaps we will finally get this on Facebook if SL isn't enough.
Both opensource and free software are deliberate intentions to undermine not only capitalism as a social system but to undermine even the commerce that a social democracy might require and replace it with communistic utopianism.
Creative Communism has NO LICENSE that says "Copy this if you will pay me". NONE. NOT EVEN CONCEIVED. And that is its fatal flaw. COPY THIS IF YOU PAY ME ON PAYPAL. Should have been the easiest thing in the book. Became complexified and hard merely because of ideological hobbles of the commies running it.
Posted by: Prokofy Neva | April 07, 2009 at 03:22 PM
Let me try going a little deeper to make it clearer:
Copyright is limited. It runs out, it's not perpetual. Why? Because it was recognized that for society to advance, at some point people had to have the freedom to build on old ideas and advance them, and be able to profit from that.
Now look at Creative Commons. The information is free, and everything based on it must be free, perpetually. Forever. There is no limitation that says 'after x number of years, the idea can then be profited from' as there is with Copyright.
Now do you see the problem with Creative Commons? It locks up ideas with no future recourse to society as a whole. Copyright recognizes the need for this 'unlocking' after a reasonable time has passed for the original creator to profit.
Of course the fact this period of time keeps getting lengthened is another debate, and yes It's a huge issue.
Posted by: Darien Caldwell | April 07, 2009 at 03:25 PM
Cube Inada:
" - Copyright holders can be contacted in individual situations to ask for permission, but when the copyright holder wants to encourage sharing, this quickly becomes a burden as everyone must contact them to ask.
THIS is why we have MACHINES.. to work tedious stuff for us... Not for us to work for a few who use machines....!!! duh the internet! whoduh thunk it!"
I'm not sure if i'm right in this one but are you suggesting that we use some kind of automated bot to hand out permission notices to people? If so, it makes much more sense simply to slap the permissions notices onto the work directly.
Prok:
"Everything Gareth says is utter nonsense, because you can write on your website in plain English, please feel free to copy or use my stuff but give me credit or simply put (c) -- and that's all there is to it. Nothing complicated at all. If you think you need something more complicated, it's social media, duh, you put your email and say "write me for permissions for my stuff which I grant for most cases" or whatever. CC as an institution needs to be replaced with people's common sense notices and a system for micropayments. Perhaps we will finally get this on Facebook if SL isn't enough."
You can of course put your own simple and short license on your works, but there's all kinds of fiddly little issues you might miss out on without legal training. I have a fairly decent understanding of copyright law myself but wouldn't dream of drafting a license document for anything serious myself simply because I haven't studied the field of law in depth, only enough to allow me to understand the basics as they apply to my situation.
By the way, you can also write your own will or write your own contracts too, but if possible you should get some proper legal counsel when drafting such documents. I've been known to draft my own contracts at times simply due to not having access to knowledgeable legal counsel, and I accept that this is a risky practice. With copyright licensing I don't have the same risks because knowledgeable attorneys have already produced documents I can use with a high degree of confidence.
"Both opensource and free software are deliberate intentions to undermine not only capitalism as a social system but to undermine even the commerce that a social democracy might require and replace it with communistic utopianism."
Citation needed :)
Free software is deliberately aimed at destroying proprietary software, not capitalism (and before you rant - the 2 are not the same, proprietary software is based on the model of getting government-granted monopolies and charging customers "protection money", not free trade). Open source has essentially no political goals at all in its ideology for the most part, it's based more on the practical and technological advantages than the social advantages.
Neither the free software movement or open source has "undermine commerce" as a function though. There are whole industry sectors devoted to free and open source software and the resulting jobs. Yes, other business models may be undermined by this new competition if it takes off, but nobody said you have a right to be insulated from the market.
"Now look at Creative Commons. The information is free, and everything based on it must be free, perpetually. Forever. There is no limitation that says 'after x number of years, the idea can then be profited from' as there is with Copyright."
CC licenses are dependent upon copyright, so if the copyright on a work expires, any restrictions placed on redistribution of it by a CC license also expire. Not to mention that barring the "no-commercial" licenses (which personally I do take issue with), none of them say you can't profit.
"Now do you see the problem with Creative Commons? It locks up ideas with no future recourse to society as a whole"
It promotes advantages to society as a whole in fact, as opposed to proprietary software which tends to remain locked up essentially forever in terms of the source code. Regardless, no license can override the expiry date set by copyright law.
Posted by: Gareth Nelson | April 07, 2009 at 04:08 PM
Darien, that's another excellent hole in CC that I should have pointed out -- thank you! They bang on copyright for having long periods of times, but they themselves ask for eternity, like all utopians. it's like those early adapters in SL who make stuff and released it for free but put it on "no mod" and then they leave SL and you are stuck with their prim-heavy, laggy concoctions that could be modernized with subsequent developments to the platform if they were really truly about freedom.
Gareth isn't a worthy interlocutor because he fisks, literalizes, etc. constantly without being able to hear simple common-sense concepts. It's not worth trying to belabour them with him as he is not capable of perception of common sense matters.
No, nothing expires on CC because it doesn't create that option. If you gave it away for free, or not for resale, you can't say, oh, I'm changing that now, it expired, now you can't have it for free or can't resell it. Duh.
Why is such common sense so elusive?
Posted by: Prokofy Neva | April 07, 2009 at 04:24 PM
"No, nothing expires on CC because it doesn't create that option."
It can't create that option because the law does not allow that option to be created. This is very simple, CC does not overrule copyright law in any manner and copyright law is where CC licenses get their force from.
"If you gave it away for free, or not for resale, you can't say, oh, I'm changing that now, it expired, now you can't have it for free or can't resell it. Duh."
You can't revoke an existing license, but when the copyright expires and the work enters the public domain the license is meaningless. The copyright does expire, even if the license doesn't expire.
Posted by: Gareth Nelson | April 07, 2009 at 05:03 PM
lol.
literally, fire is a tool/medium... just light a match to a forest..... simplicity at its best.
no, i dont have to pay 5 million dollars to google ex employees, or sign away my first born to googles billions of valuation..to offer a system that offers both control , fair usage, and fair profit usage programs for others contributing to my ventures.
and i dont need "CC" or its faddish ways that will only weaken the value of creative ideas and expressions from the individual in a society already out of balance in this way.
there aint nothing common in finding sense or cents any more:)
Posted by: cube inada | April 07, 2009 at 05:15 PM
Darien, CC is still backed by copyright. Once copyright expires, you no longer need a license to copy the work, so the terms of the license - CC or otherwise - become irrelevant.
Prok, sure you can add another mp3 to your site but how do you get people to buy it?
Posted by: Yumi Murakami | April 07, 2009 at 08:12 PM
I don't think so. Unless the license explicitly states it expires, it's perpetual. CC is completely seperate from Copyright. It's akin to a EULA, in that you accept it at the time of receipt/download.
Posted by: Darien Caldwell | April 07, 2009 at 11:57 PM
Darien - EULAs too become un-enforcible after the copyright expires.
Let me repeat again:
No license can override copyright law, and if copyright law says that copyrights expire that means no license can prevent a work entering the public domain.
If it was possible to use licensing to override the expiry date on copyrighted works don't you think disney and friends would be all over that one instead of lobbying for extending the expiry date in law?
Posted by: Gareth Nelson | April 08, 2009 at 05:01 AM
If the work is out of copyright you can just go ahead and violate the license. It isn't a contract you can be sued just for breaching, it's the terms under which the holder gives you permission to do things. And if it's out of copyright you don't need their permission anymore so you can break their rules. (IANAL, TINLA.)
Posted by: Yumi Murakami | April 08, 2009 at 10:52 AM