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I founded a group called SimAlbums where you can see some of the essays I posted to read if you join the group (it's no longer active but I keep it as an archive).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.