The Creative Common Misunderstanding
Oct. 8, 2006
Lately, the growing popularity of the Creative Commons licenses
has been accompanied by a growing amount of criticism. The objections
are substantial and boil down to the following points: that the
Creative Commons licenses are fragmented, do not define a common
minimum standard of freedoms and rights granted to users or even
fail to meet the criteria of free licenses altogether, and that
unlike the Free Software and Open Source movements, they follow
a philosophy of reserving rights of copyright owners rather than
granting them to audiences. Yet it would be too simple to only
blame the Creative Commons organization for those issues. Having
failed to set their own agenda and competently voice what they
want, artists, critics and activists have their own share in the
mess.
In his paper "Towards a Standard of Freedom: Creative Commons and
the
Free Software Movement," free software activist Benjamin Mako Hill
analyzes that "despite CC's stated desire to learn from and build upon the example
of the free software movement, CC sets no defined limits and promises no freedoms,
no rights, and no fixed qualities. Free software's success is built upon an ethical
position. CC sets no such
standard." [1] In
other words, the Creative Commons licenses lack an underlying ethical code, political
constitution or philosophical manifesto such as the Free
Software Foundation's Free Software Definition or
Debian's Social Contract and the Open Source
Initiative's Open Source Definition. [2]
Derived from each other, these three documents all define free and open source
software as computer programs that may be freely copied, used for any purpose,
studied and modified on source code level and distributed in modified form. The
concrete free software licenses, such as the GNU General Public License (GPL),
the BSD license and the Perl Artistic License, are not ends in themselves, but
only express individual implementations of those constitutions in legal terms;
they
translate politics into policies.
Such politics are absent from the Creative Commons. As Mako Hill points out,
the "non-commercial" CC licenses prohibit use for any purpose, the "no-derivatives" licenses
prohibit modification, and the CC "Sampling
License" and "Developing Nations License" even disallow verbatim copying. As
a result, none of the user rights granted by free and open source software are
ensured by the mere fact that a work has been released under a Creative Commons
license. To say that something is available under a CC license is meaningless
in practice. Not only does the CC symbol look like a fashion logo, it also isn't
more than one. Richard Stallman, founder of the GNU project and author of the
Free
Software Definition, finds that "all these licenses have in common is a label,
but people regularly mistake that common label for something
substantial." [3]
Yet some
if only vague programmatic substance is expressed in CC's motto "Some rights
reserved." Beyond being, quote Mako Hill, a "relatively hollow
call," this slogan factually reverses the Free Software and Open Source philosophy
of reserving rights to users, not copyright owners, in order to allow
the former to become producers
themselves.
While Mako Hill embraces at least a few of the CC licenses, such as the ShareAlike
License under which his own essay is available, Stallman
finds it a "self-delusion to try to endorse just some of the Creative Commons
licenses, because people lump them together; they will misconstrue any endorsement
of some as a blanket endorsement of all." [4]
According to an entry on his weblog, Stallman had "asked the leaders of Creative
Commons privately to change their policies, but they declined, so we had to part
ways." [5] The Debian
project even considers all CC licenses non-free and
recommended, in 2004, that "authors who wish to create works compatible with
the Debian Free Software Guidelines should not use any of the licenses in the
Creative Commons license suite," [6]
mostly because their attribution clause limits modifications, because of restrictions
on the Creative Commons trademark and ambiguously
worded anti-"Digital Rights Management" (DRM) provisions that could be interpreted
as prohibiting distribution over any encrypted channel, including for example
PGP-encoded E-Mail and anonymizing proxy servers.
Whatever stance one may adopt, the name "Creative Commons" is misleading because
it doesn't create a commons at all. A picture released, for example, under the
Attribution-ShareAlike license cannot legally be integrated into a video released
under the Attribution-NonCommercial license, audio published under the Sampling
License can't be used on its soundtrack. Such incompatible license terms put
what is supposed to be "free content" or "free information" back to square one,
that is, the default restrictions of copyright - hardly that what Lawrence Lessig,
founder of the Creative Commons,
could have meant with "free culture" and "read-write culture" as
opposed to "read-only culture." In his blog entry "Creative Commons Is
Broken," Alex Bosworth, program manager at the open source company SourceLabs,
points out that "of eight million photos" posted under a CC
license on Flickr.com "less than a fifth allow free remixing of content under
terms similar to an open source license. More than a third don't allow any modifications
at all." [7] The "principle
problem with Creative Commons," he writes, "is that most of the creative commons
content is not actually reuseable at all."
While these problems may at least hypothetically be solved through improvements
of the CC license texts - with the license compatibility clauses in the draft
of the GNU GPL version 3 as a possible model -, there are farther-reaching issues
on the level of politics as opposed to merely policies. CC's self-definition
that "our licenses help you keep your copyright while inviting certain uses of
your work - a `some
rights reserved' copyright" translate into what the software developer and Neoist
Dmytri Kleiner phrases as follows: "the Creative Commons, is to help `you' (the
`Producer') to keep control of `your' work." Kleiner
concludes that "the right of the `consumer' is not mentioned, neither is the
division of `producer' and `consumer' disputed. The Creative `Commons' is thus
really an Anti-Commons, serving to legitimise, rather than deny, Producer-control
and serving to enforce, rather than do away with, the distinction between producer
and consumer." [8]
Citing Lessig's examples of DJ Dangermouse's "Grey Album" and Javier
Prato's "Jesus Christ: The Musical" - "projects torpedoed by the legal owners
of the music used in the production of the works" - Kleiner sharply observes
that "the legal representatives of the Beatles and Gloria Gaynor could just as
easily have used Creative Commons licences to enforce their control over the
use of their work."
The distinction between "consumers" and "producers" couldn't be more bluntly
stated than on CC's home page. It displays, on its very top, two large clickable
buttons, one labelled "FIND Music, photos and
more," the other "PUBLISH Your Stuff, safely and legally," the former with a
down arrow, the latter with an up arrow in its logo. [9]
The small letters are no less remarkable than the capitals. Upon first glance,
the adverbs "safely and legally" sound odd and like material for a future cultural
history museum of post-Napster and post-9/11 paranoia. But above all, they name
and perpetuate the fundamental misunderstanding artists seem to have of the Creative
Commons: Free licenses were not meant to be, and aren't, a liability insurance
against getting sued for use of third-party copyrighted or trademarked material.
Whoever expects to gain this from putting work under a Creative Commons license,
is completely mistaken.
Artists are desperately looking for a solution to a problem that ultimately resulted
from their own efforts of redefining art. When art was granted, in Western cultures
at least, an autonomous status, artists were - to a moderate degree - exempt
from a number of legal norms. Kurt Schwitters was not sued for collaging the
logo of German
Commerzbank into his "Merz" painting which yielded his "Merz" art. Neither did
Andy Warhol receive injunctions for using Coca Cola's and Campbell's trademarks.
As long as these symbols remained inside the art world, they did not raise corporate
eyebrows. Experimental artists embraced the Internet just because it did away
with the separation of white cubes - in which logos and trademarks were safe
from being mixed up with the original ones - and the outside world. Mainly thanks
to the Internet, artistic simulations of corporate entities were believable for
the first time. The Yes Men could pose as the World Trade Organisation and get
invited to World Economic Forum as WTO representatives, 0100101110101101.org
could tactically disguise themselves as the Nike company. Older artistic simulations
like Res
Ingold's "Ingold Airlines" were not only transparent and clumsy in comparison,
but also on the safe grounds of an art system with little or no interference
of corporate lawyers. But ever since the World Wide Web, file sharing and cheap
or free authoring software tore down walls between art and non-art practice,
producers and consumers, former consumers were held liable as producers, and
artistic production became subject to non-art world norms, as obvious in the
FBI investigations of Steve Kurtz and ubermorgen.com for bioterrorism, respectively
tampering
the U.S. presidential elections.
Previous artistic critiques of corporate and intellectual ownership were much
less efficacious even where they were programmatically more radical. Between
1988 and 1989, a series of countercultural "Festivals
of Plagiarism," organized by Stewart Home, Graham Harwood and others, struggled
with wide gaps between radical anti-copyright rhetoric and an artistic practice
limited mostly to photocopied mail art work. John Berndt, a participant of the
London Festival of Plagiarism, left with
the impression that "a repetitive critique of 'ownership` and 'originality` in
culture was juxtaposed with collective events, in which a majority of participants
[...] simply wanted to have their
'aesthetic` and vaguely political artwork exposed," [10]
making fellow Neoist tENTATIVELY, a cONVENIENCE conclude that "Festivals of Recycling
might have been more accurate descriptions" for
the events: "By virtue of calling the act of reusing and changing previously
existing material (not even always with the intention of critiqueing said material)
'Plagiarism` the appearance of being 'radical` could be given to people whose
work was otherwise straight
out of art school teachings." [11]
Today, similar gaps and misunderstandings exist between copyleft activists and
artists who just seek to legitimize their use of third-party material. When Lawrence
Lessig characterizes the Creative
Commons as "'fair use`-plus: a promise that any freedoms given are always in
addition to the freedoms guaranteed by the law," [12]
this is technically correct, but nevertheless misunderstandable, especially for
people who aren't legal experts. Putting a work under a CC license - or even
a non-ambiguously free GNU or BSD license - means
to grant rather than to gain uses in addition to standard fair
use. The Creative Commons do not solve the problem of how not to get sued by
Coca Cola or Campbell's at all. Non-free copyrighted material cannot be freely
incorporated into one's work no matter what license one choses. Even worse, the
opposite is true: copyright owners are most likely to categorically refuse clearance
for anything that will be put into free circulation because the license of the
work incorporating their's would effectively relicense the latter. If, for example,
the Corbis corporation would permit the photograph of Einstein sticking out his
tongue - for which it holds the rights - to be reproduced in a freely licensed
book, it would free the picture for anyone else's use as well. Since this can
hardly be expected from the Bill Gates-owned company, free licensing often restrains
rather than expands one's possibilities of using
third-party material.
This example reveals a crucial difference between software development and artistic
practice: Programming can sustain itself on its own, self-built library of reusable
work, art hardly so. The GNU copyleft works on the premise that modifications
are also contributions. If, for example, a company like IBM choses to modify
the Linux kernel to run on its own servers, the GNU license forces it to give
back the added code to the development community. And the more code is available
as free software, the higher the incentive for others to simply build on existing
free code libraries and give back changes rather than building a new program
from scratch. This explains why even for computer companies, free software development
can make more economic sense than the close source commercial model. In addition,
free software development profits from a difference between source code and perceivable
appearance that doesn't have an exact equivalent in most artistic work: Programs
can be written that look and behave similar or identical to proprietary counterparts
as long as they don't use proprietary code and do not infringe on patents and
trademarks. This
way, AT&T's Unix could be rewritten as BSD and GNU/Linux, and Microsoft Office
could be cloned as OpenOffice. Even patents which could spoil such borrowings
aren't as internationally universal and not remotely as long-lasting as copyright.
In other words, free software
development could be an "appropriation art" without copyright
infringement.
The same isn't possible for most artists, however. It makes little sense for
them to restrict their uses to material whose copyright has either expired or
that has been released under sufficiently free terms. The Coca Cola logo can't
be cloned as a copylefted "FreeCola" logo, and it would be pointless for the
Yes Men to pose as an "OpenWTO" or for
0100101110101101.org to have run as "GNUke" instead of Nike. If even harmless
collaging, sampling and quoting becomes risky because of media industrial Internet
copyright paranoia and whole business models based on injunctions and lawsuits,
this is a political matter of fair use, not of free licenses. In the worst case,
free licenses, all the more fluffy and pseudo-free ones like the Creative Commons,
could be used to legitimize new restrictions of fair use legislation, or even
its
abolition altogether, with the alibi that the so-called "ecosystem," or ghetto,
of more or less freely licensed work provides enough fair use for those who bother
to care. [13]
It is not hard to bash the Creative Commons for being an organization run with
little understanding of the arts, and not even a good understanding of open source
and free software philosophy. On the other hand, artists themselves have failed
to voice themselves what they want. The exceptions are few and rather marginal:
the anti-copyright
philosophies and politics of Lautréamont, Woody Guthrie (who, according
to Dmytri Kleiner, released his songbook with the
license that "anybody caught singin' it without our permission, will be mighty
good friends of ours, cause we don't give a dern. Publish it. Write it. Sing
it. Swing to it. Yodel it"), Lettrists, Situationists, Neoists, Plunderphonics
musicians and some Internet artists including the French artlibre.org collective
whose "Free Art License" predates
the Creative Commons by two years. [14]
A team of lawyers whose work consists of creating, as Bosworth puts it, "low
cost legal templates," the Creative Commons organization has simply listened
to all kinds of artists and activists, trying to do justice to diverse and sometimes
contradictory needs and expectations,
with licenses "designed to give artists choice" (Mako Hill) rather than prioritizing
free use and reuse of information. In contrast, Free Software and Open Source
are, like any human and civil rights effort, universalist at their core, with
principles that are neither
negotiable, nor may be culturally relativized.
If someone is to blame for the fact that artists, political activists and academics
from the humanities have largely failed to recognize those essentials, then it
is Eric S. Raymond, founder of the "Open
Source Initative" (http://www.opensource.org),
the group that coined the term "Open Source" in 1998. The main advantage of the
term "Open Source" over "Free Software" is that it doesn't merely refer to computer
programs, but evokes broader cultural
connotations. [15]
For most
people with artistic backgrounds, GNU's "Free Software" sounded too confusingly
similar to (close-source) "freeware" and "shareware." "Open
Source" sparked an all the richer imagination as Raymond didn't simply pitch
it as an alternative to proprietary "intellectual property" regimes, but as a "Bazaar" model
of open, networked collaboration. Yet this is not at all what the Open Source
Initiative's own "Open Source
Definition" says or is about. Derived from Debian's "Free Software
Guidelines," it simply lists criteria licenses have to meet in order to be considered
free, respectively open source. The fact that a work is available under such
a license might enable collaborative work on it, but it doesn't have to by definition.
Much free software - the GNU utilities and the free BSDs for example - is developed
by rather closed
groups and committees of programmers in what Raymond calls a "Cathedral" methodology.
Conversely, proprietary software companies such as Microsoft may develop their
code in distributed "Bazaar" style.
Nevertheless, the homepage of http://www.opensource.org states
that the "basic idea behind open source" is about how "software
evolves," "at a speed that, if one is used to the slow pace of conventional software
development, seems astonishing," thus producing "better software than the traditional
closed model." Regardless which position one takes in the philosophical and ideological
dispute between "Free Software" and "Open Source," the self-characterization
of Open Source as a development model mixes up cause and effect, being inconsistent
with what the Open Source Definition, on the same website, qualifies as Open
Source, i.e. software whose licenses fulfill its
criteria of openness.
Given how "Open Source" has been propagated as a model of networked collaboration
instead of user rights or free infrastructures, the gap between the lip-service
paid to it in the arts and humanities and the factual use of free software and
copylefts comes to little surprise. "Cultural" free software conferences whose
organizers and speakers run Windows or the Mac OS on their laptops continue to
be the norm. With few exceptions, art education hardly ever involves free software,
but is tied to proprietary software tool chains. Yet - often vague or ill-informed
- "Open Source" references abound in media studies and
electronic arts writing.
The problem is not so much that people do not use free operating systems, but
that software-political correctness anxiety prevents a more honest critical discourse.
A debate on "why free software doesn't
work for us" would be more productive for free software development than the
current hypocrisy. Recent discussions on why, for example, free software culture
involves disproportionally few women - even in comparison to proprietary software
development - have at least begun to
tackle some of those issues.
Productive critique, after all, is needed. Eight years after the
coinage of "Open Source," Raymond's Hegelian claims of superior development methodologies
sound increasingly hollow. Free software hasn't displaced proprietary software
at all. Despite its success on servers and in embedded systems, it is unlikely
to take over mainstream personal computing any time soon. Free software, it seems,
has its strength in building software infrastructure: kernels, file systems,
network stacks, compilers, scripting languages, libraries, web, file and mail
servers, database engines. It lags behind proprietary offerings, for example,
in conventional desktop publishing and video editing, and, as a rule of thumb,
in anything that isn't highly modularized or used a lot by its own developer
community. The closer the software is to the daily needs and work methods of
programmers and
system administrators, the higher typically its quality.
Similar rules seem to apply to free information, respectively "Open
Content" development. The model works best for infrastructural, general, non-individualistic
information resources, with Wikipedia and FreeDB (and lately MusicBrainz) as
prime examples. Similarly, the cultural logic of sounds and images circulating
under CC licenses is largely that of stock music, stock photography and clip
art, regardless
the fact that current CC licenses mostly fail to permit their "mashups," boiling
down to little more than "Web 2.0" lifestyle logos. Beyond software, infrastructural
information and publishing that waives reproduction rights, the value of free
licensing is somewhat doubtful. Experimental, radical art and activism that does
not play nice with third-party copyrights and trademarks can't be legally released
and used under whatever license anyway. Its work should rather - and explicitly
- be released into the public domain with, quote jodi, "all
wrongs reversed" and, quote Kleiner, "all rights detourned under the terms of
the Woody Guthrie General License Agreement." For professional artists, this
simply means to acknowledge the reality of contemporary art economics: that artists,
with the exception of a handful of stars, no longer live from producing material
goods (for which copyright granted lifetime monopolies, or at least the illusion
of continuous revenue streams), but like 17th century project entrepreneurs from
commissioned projects whose material products have little or no market value
by themselves.
Copyright, having turned from regulation into subsidy of publishing industries,
is the 21st century equivalent of drug legislation. Everyone knows that it is
obsolete, dysfunctional, and depriving people of their rights; absurd wars are
foughts in its name. The simple fix is
to abolish it.
Footnotes
1) Benjamin
Mako Hill, Towards a Standard of Freedom: Creative Commons and the Free Software
Movement, http://www.advogato.org/article/851.html
3) http://www.linuxp2p.com/forums/viewtopic.php?p=10771
4) http://www.linuxp2p.com/forums/viewtopic.php?p=10771
5) http://www.fsf.org/blogs/rms/entry-20050920.html
6) http://lists.debian.org/debian-legal/2004/07/msg01193.html
7) http://www.sourcelabs.com/blogs/ajb/2006/02/creative_commons_is_broken.html
8) Dmytri
Kleiner, The Creative Anti-Commons and the Poverty of
Networks, http://info.interactivist.net/article.pl?sid=06/09/16/2053224
9) http://creativecommons.org/images/find.gif, http://creativecommons.org/license
10) John
Berndt, Proletarian Posturing and the Strike that Never Ends, SMILE
magazine, Baltimore, 1988
11) tENTATIVELY,
a cONVENIENCE, History Begins where Life Ends, self-published pamphlet,
Baltimore 1993
12) http://creativecommons.org/weblog/entry/5681
13) This scenario
isn't too far-fetched considering Lessig's recent advocacy of the non-open file
format Adobe/Macromedia's Flash which he calls a "crucial tool of basic digital
education in a free culture" (quotation
translated from the German article http://www.heise.de/newsticker/meldung/78278/,
see also http://lwn.net/Articles/199877/)
Since proprietary file formats cannot be universally accessed and lock information
into technology whose availability is at the mercy of a single vendor, they restrain
fair use.
14) http://artlibre.org/licence/lal/en/
15) It is
not coincidental, for example, that the term "Open Content" and the web
site http://www.opencontent.org was
launched in 1998 only few months after the first propagation of "Open Source," until
its founder David Wiley sacked the initiative in 2004 in order to - ironically
or not - become a director of Creative
Commons.
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