paul on Tue, 10 Oct 2006 22:28:26 +0200 (CEST)

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Re: <nettime> The Creative Common Misunderstanding

dear Florian,

thanks for posting this article, which nicely dums up a number of
issues but - as far as i am concerned - has a fairly misleading title.
if your main concern in indeed the fact that there is a fundamental
misunderstanding among artists and creators about what licenses can
or cannot do, calling the whole thing the creative common (sic!)
misunderstanding is a bit unfair. you write

> 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.

as you observe this is indeed an issue with all free licenses (be it
content oriented ones like free art license or any of the creative
commons licenses or software licenses like the GPL or BSD style
licenses). Creative Commons has to my knowledge never claimed that it
would (attempt to) remedy the problem your are describing. That is
why Creative Commons is fairly agressive in stating that the rights
granted by the licenses come on top of fair use/dealing/copyright
exceptions rights and do not limit them.

In the current copyright framework it does not seem possible to
construct a licenses that could serveas 'liability insurance against
getting sued for use of third-part copyrighted or trademarked
material' and i do wonder on what you base your claim that artists
expect CC licenses (or any other licenses) to provide this? In the
three years or so that i have received questions and comments about
the CC licenses for the dutch CC-project i have never come along
anyone who claimed anything like this.

also i think it would be productive to finally stop comparing open
content licenses to open source/free software licenses. admitted CC
states that they have been inspired by these licenses, but inspired
does not mean that these licenses that govern a clearly demarcated
field of endeavor (writing and reusing code) with a limited range of
players (coders, software and hardware companies) can be directly
compared to open content licenses which have the ambition to be usable
for the entire field of cultural production. the standards set by
licenses like the GPL as a social contract that attempts to model
behaviour of a relatively homogenous group of individuals and mareket
actors cannot be met by licenses that lack a clearly defined group of
actors granting rights and using material covered by them.

even more this comparison tends to lead to false analogies. the recent
proposal by debian legal to let the Creative Commons licenses allow
parallel distribution of DRM locked and DRM unlocked material (which
according to debian is a requirement for them to consider some of the
CC licenses DFSG-free, as otherwise the freedom to use the licensed
content on any platform is curtailed) is a good example of this. one
of the arguments used in the discussion was that as the parallel
distribution mechanism works well in the context of free software
licenses (when distributing binary code, parallel distribution of
the source code is required) it will also work for Creative Commons
licenses. Parallel distribution might make perfect sense when dealing
with software code, where distributing binary code is essential
in order to make it useable for non-developers and the parallel
distribution of source code ensures the freedoms to study and to
modify. However you cannot simply transfer this mechanism to the world
of 'content'. here distribution in the closed non modifiable format
(DRM-locked files) is not a necessary precondition to make it useable
by significant groups of other. just because a mechanism makes sense
in the realm of FLOSS it does not have to make sense elsewhere.

i guess my point is that we should stop comparing 'open content'
licenses to licenses that govern the highly specialized (and to the
majority of 'open contnet' users higly obscure) field of software
development and start to develop a critique of open content licensing
practices that stands on itself. and while we are doing so, we should
stop blaming the Creative Commons for the inherent wrongs of the
copyright system...

best, paul

-- | skype: paulkeller | http://

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