Florian Cramer on Tue, 10 Oct 2006 06:01:17 +0200 (CEST)

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<nettime> The Creative Common Misunderstanding

The Creative Common Misunderstanding

Lately, the growing popularity of the Creative Commons licenses has
been counterpointed 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 - waived from a number of legal
norms. Kurt Schwitters was not sued for collaging the logo of German
Commerzbank into his "Merz" painting which in turn 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 in London,
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 artists
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 former. 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, but 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. 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 appropriations 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, and 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
licenses. The Coca Cola logo can't be cloned as a copylefted "FreeCola"
logo, and it would be pointless for the YesMen 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, it 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 free software philosophy. On the other hand, artists themselves have
failed to voice themselves what they want. The exceptions are few and
rather marginal, such as the anti-copyright philosophies and politics of
Lautr?amont, 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 may be neither negotiated, nor culturally

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 "Open Source Definition" says or
is about. Derived from Debian's "Free Software Guidelines," it simply
lists criteria licenses have to match 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 qualifies as Open
Source, i.e. software that meets its standards of free use.

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 and half-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 its 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) at least begin to tackle some of the 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 and seems, despite its success on servers
and in embedded systems, to be unlikely to take over mainstream personal
computers 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 infrastructural information,
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 a regulation into a 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.

Florian Cramer, October 2006



^1 Benjamin Mako Hill, Towards a Standard of Freedom: Creative Commons
and the Free Software Movement, http://www.advogato.org/article/851.html

^2 http://www.gnu.org/philosophy/free-sw.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


^8 Dmytri Kleiner, The Creative Anti-Commons and the Poverty of Networks,

^9 http://creativecommons.org/images/find.gif,

^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 - surprisingly or
not - become a director of Creative Commons.

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