Florian Cramer on Fri, 13 Oct 2006 04:23:10 +0200 (CEST)

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Re: <nettime> The Creative Common Misunderstanding

Hello Paul,

sorry for replying a bit late. Yes, indeed I claimed that many artists
and activists seem to look into free licenses under the wrong assumption
that it permits them use of third-party copyrighted or trademarked
material. This is based on my first-hand experience, among others as
one of the copy editors of Lawrence Liang's "Guide to Open Content
Licenses", panel moderator at "Wizards of OS" and participant at other
arts-related festivals. Lawrence's book contains (on page 28) the
example of a journalist who seeks to illustrate his book with movie
stills, but wouldn't solve his copyright trouble by putting the book
under a free license. This was not some hypothetical story, but based on
an actual exchange with a film journalist who had read the draft of the
manuscript in the precise hope that it would point him to a solution of
his problem. After we explained the matter, he lost interest in free
licensing altogether. 

At a "Wizards of OS" panel on "art as anti-copyright activism" I
moderated in 2004, many artists in the audience thought of free licenses
as a solution for using third-party work without jeopardizing
themselves.  Their interest in the Creative Commons was less motivated
by contributing to a cultural movement of sharing (like, for example, in
Situationism or the Luther Blissett project before), but by wanting to
avoid legal risks for use of third-party material.

There is a wide-spread false belief that, by declaring your work
"non-commercial" under CC, your use of third-party material becomes fair
use. Some people think this applies to any third-party material, some
that it only applies to material from the Internet, others that it
applies to any material licensed under CC, and they're all 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. 

Perhaps not in the fine print, but (as I wrote) its web site literally
says right on top, on a big button linking the license menu page:
"Publish your stuff, safely and legally". 

The attributes "safely and legally" blatantly mislead people into the
false beliefs I described. Nothing is "safely" or "legally"published by
putting it under a CC (or any other) license.  There is, as a matter of
fact, no "safe" publishing in the Internet or elsewhere.

> 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.

But that is just as much or even more misleading in the above context;
people who aren't legal experts may easily think that they _receive_
freedoms on top of fair use rather than _grant_ them to others.

> 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. 

I don't see software as a limited field (or form) of contemporary
culture, but only as one that historically preempted political issues
that apply to digital information in general. In the case of computer
games  - to take only the most popular example and not start talking
about software art, programmed digital art, generative image and sound
work...  -, the distinction of software and audiovisual arts collapses

The irony is, for example, that hardly any of the images, sounds,
videos, texts etc. licensed under CC can be legally used in an open
source/free game.  

> 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.

Since the GPL defines user rights, the group of actors it applies to in
fact includes everyone using GPLed software - who make use of the 
GNU philosophy of freely copying the program and using it for any
purpose. If you use the Firefox browser, then you are part of that

> 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. 

But the fact that the analogy doesn't work for DRMed vs. unencumbered
files doesn't make it altogether false (in my opinion).  Examples of
"source" and "binary" in so-called "content" do abound: an editable text
file versus a read-only PDF file; the original multitrack authoring file
of an audio or video project versus the 'compiled' mp3 or MPEG video
file; a multi-layer Photoshop or Gimp image vs.  the 'compiled' JPEG; a
database that can only be browsed/searched (like Amazon.com) vs.  the
underlying database file.

> 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. 

The philosophical manifestos of Free Software are not overly specific to
computer programs. Unrestricted copying, usage, studying, modifying and
redistribution - to rephrase the GNU Free Software Definition - seem 
quite generic to me, the most simple definition of information that
deserves to be called "free". It's hard to imagine true "read-write
culture" without those basics.

> and while we are doing so, we should
> stop blaming the Creative Commons for the inherent wrongs of the
> copyright system...

The GNU copyleft shows how far you can get if you play legal within that
system; CC doesn't even make a respective attempt. Since the only common
ground of freedoms and rights granted by the CC licenses are, ironically
enough, the "freedoms" of standard copyright, those licenses as a whole
unfortunately do not manifest any alternative intention or vision of
tackling those inherent wrongs at all. 




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