A handful of myths have become common defenses of the W3C’s plan for “Encrypted Media Extensions” (EME), a Digital Restrictions Management (DRM) scheme for HTML5, the next version of the markup language upon which the Web is built.

These arguments obscure the threat this poses to a free and open web and why we must send a strong and clear message to the W3C and its member organizations, that DRM in HTML5 is a betrayal to all Web users and undermines the W3C’s self-stated mission to make the benefits of the Web “available to all people, whatever their hardware, software, network infrastructure, native language, culture, geographical location, or physical or mental ability.” The W3C exists to bring the vision of an undivided ‘One Web’ to its full potential, and DRM is antithetical to that goal.

Among the most popular claims are:

1. that DRM doesn’t work; that it exists to protect creators, but since it is easily cracked and can be worked around, it is largely ineffective and irrelevant
2. that DRM in HTML5 is a necessary compromise to finally bring an end to the proliferation of proprietary, platform-specific browser plugins such as Adobe Flash Player and Micrisoft Silverlight
3. that the web needs DRM in HTML5 in order for Hollywood and other media giants to finally start giving the Web priority over delivering media over traditional means

All of these myths depend on dangerous misconceptions of how the planned Encrypted Media Extensions work, why Hollywood’s threat of boycott is completely empty, who DRM is actually built for, and what the purpose of free and open Web standards is. Implementing the EME proposal would simultaneously legitimize DRM through the HTML5 standard and needlessly concede the very purpose of Web standards. This is not a compromise for the advancement of the Web, it’s a complete concession of the principles of the W3C.

The next time any of those myths come up, you can use the following to respond:

1. DRM is not about protecting copyright. That is a straw man. DRM is about limiting the functionality of devices and selling features back in the form of services.

Public perception of DRM is that it exists to prevent unauthorized copying, but that it’s inherently ineffective because it’s impossible to simultaneously show someone something and keep it hidden from them. This is a grave mistake that hides the actual function of DRM, which is overwhelmingly successful: to prevent completely legal uses of technology so that media companies can charge over and over for services which provide functionality that should never have been removed to begin with.

Copyright already provides leverage against media distributors, but DRM provides leverage against technological innovations which have given users the capability to do much more with media than ever before. Free of technologically imposed limits, anyone can view their media whenever they want, wherever they want, on whichever devices they want, and however they want. By imposing digital restrictions, media giants can prevent users from skipping advertisements or viewing media on multiple devices, and then charging for the relief from those antifeatures. This gives media companies total control over how people use their technology and creates a huge market out of artificially produced scarcity. This exploitative practice targets the vast majority of users who acquire their media legally, and it’s already stunted the growth of the Web enough.

Ian Hickson, the author and maintainer of the HTML5 specification, is not only overseeing the HTML5 standard at the W3C but also an engineer at Google (ironically, one of the biggest corporate proponents of the EME proposal). He blasts the idea that DRM’s purpose is to enforce copyrights and explains the distinction thoroughly:

Arguing that DRM doesn’t work is, it turns out, missing the point. DRM is working really well in the video and book space. Sure, the DRM systems have all been broken, but that doesn’t matter to the DRM proponents. Licensed DVD players still enforce the restrictions. Mass market providers can’t create unlicensed DVD players, so they remain a black or gray market curiosity. DRM failed in the music space not because DRM is doomed, but because the content providers sold their digital content without DRM, and thus enabled all kinds of players they didn’t expect (such as “MP3″ players). Had CDs been encrypted, iPods would not have been able to read their content, because the content providers would have been able to use their DRM contracts as leverage to prevent it. DRM’s purpose is to give content providers control over software and hardware providers, and it is satisfying that purpose well.

2. DRM in HTML5 doesn’t obviate proprietary, platform-specific browser plug-ins; it encourages them.

The web would certainly be better off without Microsoft Silverlight and Adobe Flash Player, but the idea that putting DRM into HTML itself to make them obsolete is absurd. The EME proposal would not make proprietary, platform-specific plugins disappear; in fact it makes a new space for them as Content Decryption Modules (CDMs). These would be no less of a problem for Web users, especially those using free/libre and open source browsers and operating systems. The fact that they would gain legitimacy as a Web standard would make them a much bigger problem.

Providing a space for a DRM scheme in HTML5 invites the kind of incompatibilities that HTML was created to undo. EMEs would require that proprietary browsers and operating systems implement more restrictive antifeatures to prevent bypassing the DRM, and as the corollary to this, EMEs would be able to detect whether the user’s software did not have such antifeatures (as is the case with free/libre and open source software, specifically GNU+Linux operating systems) and refuse to deliver the media.

New implementations of anti-user technology are not preferable to old implementations of anti-user technology. While it may eliminate the corporate demands for Silverlight and Flash, at least in their current incarnation, the Encrypted Media Extensions plan takes what makes those particular technologies terrible for users (digital restrictions management, poor cross-platform support, etc) and injects it directly into the fabric of the Web. This is equivalent to inviting Microsoft Silverlight, Adobe Flash Player, and the like to be part of the HTML5 standard.

As the Electronic Frontier Foundation (EFF) writes:

The EME proposal suffers from many of these problems because it explicitly abdicates responsibility on compatibility issues and lets Web sites require specific proprietary third-party software or even special hardware and particular operating systems (all referred to under the generic name “content decryption modules”, or CDMs, and none of them specified by EME). EME’s authors keep saying that what CDMs are, and do, and where they come from is totally outside of the scope of EME, and that EME itself can’t be thought of as DRM because not all CDMs are DRM systems. Yet if the client can’t prove it’s running the particular proprietary thing the site demands, and hence doesn’t have an approved CDM, it can’t render the site’s content. Perversely, this is exactly the reverse of the reason that the World Wide Web Consortium exists in the first place. W3C is there to create comprehensible, publicly-implementable standards that will guarantee interoperability, not to facilitate an explosion of new mutually-incompatible software and of sites and services that can only be accessed by particular devices or applications. But EME is a proposal to bring exactly that dysfunctional dynamic into HTML5, even risking a return to the “bad old days, before the Web” of deliberately limited interoperability.

…

All too often, technology companies have raced against each other to build restrictive tangleware that suits Hollywood’s whims, selling out their users in the process. But open Web standards are an antidote to that dynamic, and it would be a terrible mistake for the Web community to leave the door open for Hollywood’s gangrenous anti-technology culture to infect W3C standards. It would undermine the very purposes for which HTML5 exists: to build an open-ecosystem alternatives to all the functionality that is missing in previous Web standards, without the problems of device limitations, platform incompatibility, and non-transparency that were created by platforms like Flash. HTML5 was supposed to be better than Flash, and excluding DRM is exactly what would make it better.

3. The Web doesn’t need big media; big media needs the Web.

The idea that Hollywood, the MPAA, RIAA, or any other media giant has buying-power over the Web is a farce. The Web is here, it is the nexus of media convergence, and it’s eating up other industries. Big media companies know that they must adapt or go out of business, but they are audaciously attempting to convince us that the Web should provide them with another, more expansive system of control over online media distribution on top of the already far-reaching legal restrictions they abuse. These threats are not new.  During the Broadcast Flag negotiations to implement DRM for high-definition digital television,

MPAA’s Fritz Attaway said that “high-value content will migrate away” from television if the Broadcast Flag wasn’t imposed; he told Congress that fears of infringement without a Broadcast Flag mandate “will lead content creators to cease making their high-value programming available for distribution over digital broadcast television [and] the DTV transition would be seriously threatened.”

Glynn Moody elaborates on these hollow threats attacking free software and the free and open web:

Let’s look at the record on threats to boycott non-DRM broadcasting from these companies. In 2003, the US Broadcast Protection Discussion Group (a committee in the Hollywood-based Copy Protection Technical Working Group) went to work on a plan for adding DRM called the Broadcast Flag to America’s high-def broadcasts. I attended every one of these meetings, working on behalf of the Electronic Frontier Foundation and the free/open TV projects it represented, including MythTV (an open video-recorder) and GNU Radio (an open radio/TV receiver).

Over and over again, the rightsholders in the room during the Broadcast Flag negotiations attempted to create a sense of urgency by threatening to boycott American high-def telly if they didn’t get DRM. They repeated these threats in their submissions to the Federal Communications Commission (Ofcom’s US counterpart) and in their meetings with American lawmakers.

And here’s how it turned out:

So what happened? Did they make good on their threats? Did they go to their shareholders and explain that the reason they weren’t broadcasting anything this year is because the government wouldn’t let them control TVs?

No. They broadcast. They continue to broadcast today, with no DRM.

The EFF makes this abundantly clear in their statement:

The perception is that Hollywood will never allow movies onto the Web if it can’t encumber them with DRM restrictions. But the threat that Hollywood could take its toys and go home is illusory. Every film that Hollywood releases is already available for those who really want to pirate a copy. Huge volumes of music are sold by iTunes, Amazon, Magnatune and dozens of other sites without the need for DRM. Streaming services like Netflix and Spotify have succeeded because they are more convenient than piratical alternatives, not because DRM does anything to enhance their economics. The only logically coherent reason for Hollywood to demand DRM is that the movie studios want veto controls over how mainstream technologies are designed. Movie studios have used DRM to enforce arbitrary restrictions on products, including preventing fast-forwarding and imposing regional playback controls, and created complicated and expensive “compliance” regimes for compliant technology companies that give small consortia of media and big tech companies a veto right on innovation.

Protect internet freedom: tell the W3C that DRM has no place in their standards.

Help Defective by Design, the Free Software Foundation‘s campaign against DRM gather 50,000 signatures against DRM in HTML5.

Sign the petition here:
http://www.defectivebydesign.org/no-drm-in-html5

You can also contact the W3C here:
http://www.w3.org/Consortium/contact

We are excited to announce the Free Culture Foundation — the new organization taking the place of Students for Free Culture. This change reflects the evolution of the organization over the first nine years of its life to support free culture advocacy in communities beyond students, to emphasize coalition building with existing free culture organizations, and to renew our commitment to free culture as an issue of social justice.

1. First, this change reflects an expansion of our activism to non-student communities.

Although our organization was started within colleges, universities, and high schools, we have grown to involve the work of many non-students. Many of our members and leaders have graduated and continue to participate in the organization.  We want an organization that not only retains its members but has room for those who graduate and still wish to be organize around free culture. Many non-students have joined and support our advocacy and activism. To acknowledge the fluidity of student status as well as the valuable contributions of non-students to our organizations, we have selected a more inclusive name that reflects the breadth of our constituency.

That said, with dozens of student chapters that have been established around the world over the years, our roots and our base will remain in the academy. A new name and an increased commitment to non-students does not reflect a retreat from our strong commitment to students and to student activism in free culture. Although we plan to support local and non-academic chapters, our organization will continue a strong emphasis on campus organizing.

Just as we have outgrown our name, we have outgrown our old institutional structure. With the support of Joseph Dempsey, we are in the process of filing as a 501(c)(3) non-profit organization.

2. Second, as the institutional landscape around free culture has evolved over the last nine years, we aim to reflect a changed position in an ecosystem of free culture organizations.

There are many organizations that carry out invaluable work benefiting the free culture movement: the Free Software Foundation, Electronic Frontier Foundation, Mozilla Foundation, Wikimedia Foundation, Open Knowledge Foundation, Public Knowledge, Creative Commons, and many other organizations have been founded, grown enormously, and changed, over the last decade. Today, the broader free culture movement does much more than our initial goals of promoting free software and free cultural works. The Free Culture Foundation seeks to fill a space between these organizations and bring them together.

A decade ago, the free culture movement focused on exploring possibilities and setting goals. After nine years of work in the broader free culture community, we can affirm a strong commitment to successful models of free culture put in practice by organizations like the Wikimedia Foundation, the Definition of Free Culture Works, the open access movement, and the Free Software Foundation. The free culture movement has also grown in breadth. Our work no longer involves only promoting increased use of free software and free cultural works. With our strong history of organizing, we aim to build upon, complement, and fill some of the spaces between the many other organizations to support a broad range of free culture issues.

3. Finally, we seek to reiterate a renewed commitment to free culture as issue of social justice and to connect more effectively with other activists and movements working on these issues.

As our announcement of support for the Empowermentors Collective reads, “It is imperative that we acknowledge that there are systemic structures of control embedded in our society which permeate our movement. Refusing  to do so in an effort to compartmentalize and focus on our own goals is detrimental to our success. We cannot afford to be an isolated, inward-facing movement.” We do not live merely in coexistence with media and technology, but we live in and through them. They continuously influence how we communicate, frame our understandings of ourselves, and mediate how we experience the world.

In our continued advocacy, we want to emphasize that free culture reflects not only an approach to sharing but an important way to promote autonomy. Our movement should be grounded in the needs of those most exploited by private ownership over technology, information, and media. Songs, films, books, and apps do not need freedom, people do.

In these next steps, there remain many critical open questions and unfilled needs. We invite all free culture activists to participate in this ongoing evolution and expansion of our organization and our movement over the coming months. We encourage existing or former participants to reconnect. To join our community, please subscribe to our discussion list.

CC-BY-SA 3.0

CC-BY-SA 3.0

We’re ordering a small batch of t-shirts for the Free Culture X 2013 conference at New York Law School on April 20th! We’ll be selling them for $20 a pop, and all volunteers get one for free.

CC-BY-SA 3.0

The designs are licensed CC-BY-SA and the SVG source files are available here to modify in inkscape.

Students for Free Culture will be having its annual conference at New York Law School on April 20-21st!

The Students for Free Culture Conference is an annual gathering of student and non-student activists, thinkers, and innovators who are dedicated to advancing discussions on technology, law, and public policy. Through panels and keynote speakers, FCX 2013 will focus on current issues in intellectual property law, open access to educational resources, maker culture, and technology policy. Through workshops, the conference will revisit the core pillars of the free culture movement, examine the success stories from our movement, and identify new ways in which Students for Free Culture can advocate for a more free, open, and participatory digital environment.

For more information about the conference, visit the conference website.

Registration is open!

Through the generosity of our sponsors, Students for Free Culture is once again able to offset student travel costs for this year’s conference in NYC. Our first priority is to provide funding to at least one student from every active chapter in the organization – but funding is available to all student activists and leaders who would like to attend FCX2013.

If you can’t afford the cost of traveling to NYC next month, please do not hesitate to fill out this form to request travel funding. We have some money and we want to give it to you.

If you have friends at schools that do not currently have an active SFC chapter but you think they should be at the conference, please pass along this link to them, too. Sometimes attending the conference is just the spark that someone needs to get out there and start a new chapter on their campus!

The open access movement is a long-standing campaign in the world of research to make scholarly works freely available and reusable. One of its fundamental premises is that the progress of knowledge and culture happens scholarly works of all kinds are widely shared, not hidden in ivory towers built with paywalls and shorn by harsh legal regimes.

Scholarly journal publishers currently compile research done by professors (for free), send articles out to be peer reviewed (for free), and distribute the edited journals back to universities around the world (for costs anywhere up to $35,000 each). Subscription prices have outpaced inflation by over 250 percent in the past 30 years, and these fees go straight to the publisher. Neither the authors nor their institutions are paid a cent, and the research itself—which is largely funded by taxpayers—remains difficult to attain. Skyrocketing costs have forced university libraries—even Harvard’s, the richest American university—to pick and choose between journal subscriptions.

The result: students and citizens face barriers accessing information they need; professors have a harder time reviewing and teaching the state of the art; and cutting-edge research remains hidden behind paywalls, depriving it of the visibility it deserves.

The good news is that the open access movement is changing all this, and you can help. As scholars, researchers, and tuition-payers, students hold a powerful voice in setting the course for the future of knowledge.

Here are three quick actions you can take to help promote the open access movement and support the cultural commons:

If you have 10 minutes…

Watch this video and share it widely

Privacy info. This embed will serve content from youtube-nocookie.com

This eight-minute video is an excellent primer on open access, animated by PHD Comics creator Jorge Cham and narrated by U.C. Davis biology professor Jonathan Eisen and SPARC’s Nick Shockey. It highlights all the major issues with the current scholarly publishing system, as well as the benefits of open access. It’s fun, it’s engaging, it’s informative, and it’s definitely worth sharing around.

Here’s a sample tweet:

I support #OpenAccess to research. Everybody benefits when knowledge is shared. Watch this video to learn more: https://eff.org/r.3bHx

If you have 30 minutes…

Reach out to your professors and librarians

More often than not, university professors are both teachers and researchers. As authors, they control whether their articles will be openly available, and as faculty, they have the power to establish a campus open access policy.

Likewise, librarians are the custodians of knowledge at universities. Their job rests on spreading information, and they are often the ones making decisions about journal subscriptions, best practices, and institutional repositories. (And librarians are often the most aware of the boons of open access.)

Reach out to them and let them know you care about open access. Send an email, grab them after class, or set up a meeting. Professors and librarians (and even administrators) are often willing to talk about the state of academic publishing since it defines such a big part of their lives.

Here is a sample letter:

Dear [insert name here],

I am a student interested in learning your views on scholarly publishing and the open access movement. I believe that open access to academic articles is crucial to the progress of knowledge and is in line with our school’s dedication to the public good.

Many professors have made their works widely accessible by publishing in open access journals or depositing articles into repositories like PubMed Central, arXiv, and SSRN. Also, institutions like Harvard, Duke, and the University of Kansas have established strong open access mandates and funds to cover processing costs.

I support a future where scholarly works are available to anyone around the world, and I would love to hear your thoughts. Are you free to meet in person to talk more about open access?

Best,

[your name here]

If you have an hour…

Write an op-ed for your school newspaper

Taking your voice to a public forum can be an extremely effective form of advocacy. School newspapers are around for just this purpose—and they’re often itching for content. Open access affects everybody at your school, and an opinion piece or letter to the editor calling for change is sure to garner interested comments or emails.

Here are a few examples: two from Harvard (one by student advocates and one by Robert Darnton, the director of their library); two from Yale (one general call to action and one written in light of Aaron Swartz’ death—both, in full disclosure, written by myself); and an editorial from Duke.

Explaining open access and calling for action in a way that appeals to members of your school’s community—all within 700 words—is a task that requires some give and take. Before writing your op-ed, ask yourself, “What is the key point I want my audience to remember?” Narrowing the scope of your piece can help make your opinion more readable, approachable, and relevant. It may help to reach out to librarians for attention-grabbing facts, such as how much your university spends on subscriptions or the cost of your most expensive journal.

If you are interested in doing more…

• Organize a tabling effort, talking to students and handing out fliers

• If your institute doesn’t have an open access repository, advocate for one where researchers and students can deposit scholarly works. An up-to-date list of current open access repositories can be found at the OpenDOAR project.

• Push for an institutional open access mandate, whereby professors grant your university the right to make their works publicly available via your campus repository. A list of institutions with open access mandates can be found on the ROARMAP project.

• Join a student group that advocates access to knowledge, such as Students for Free Culture and Universities Allied for Essential Medicines. A list of relevant student groups can be found at the Right to Research Coalition website.

• Sign up for EFF action alerts. We’ll keep you updated about opportunities to support national legislation requiring free access to publicly funded research.

This has been cross-posted at the Free Software Foundation blog here.

The Empowermentors Collective is a new space by and for women of color and queer people of color within free software and free culture.

We recognize the need to address deep-seated cultural norms within the free software and free culture communities which, under the guise of openness, have excused and perpetuated alienating behavior. It is imperative that we acknowledge that there are systemic structures of control embedded in our society which permeate our movement. Refusing to do so in an effort to compartmentalize and focus on our own goals is detrimental to our success. We cannot afford to be an isolated, inward-facing movement.

To expose and undo this culture of exclusion, we would like to support the recently established Empowermentors Collective, a community for intersectionally marginalized identities. This type of intentional space also opens up the potential for much needed coalition building and advances our own understanding of how technology and media are inseparable from our experiences and ourselves, our bodies.

As the description reads:

The Empowermentors Collective is a skillshare, activism, and discussion network by and for women of color and queer people of color. We are a group of community members with a strong commitment to furthering free software and free culture through an intersectionally marginalized lens and making a more welcoming space out of these communities. We therefore necessarily also work against and do not tolerate oppression in all its forms: ableism, racism, cissexism, heterosexism, sexism, classism, etc.

The Empowermentors Collective strives to be an affirming and safer space for people with disabilities, people of color, women, and people self-identified as queer or LGBT.

We are called Empowermentors because we focus on education and encourage participants to host workshops and skillshares geared towards intersectionally marginalized identities.

• We maintain a safer space for marginalized identity groups.
• We address issues of oppression within the free software and free culture communities.
• We equip each other with skills and knowledge of free software and free culture.
• We file, catalog, and help solve bugs related to race, gender, and accessibility in free software projects.
• We take on mentorship positions and run targeted workshops, classes, and skillshares.

Students for Free Culture and the Free Software Foundation are proud to support this effort to identify, expose, and confront crucial issues within our communities; to bridge our movement with our contemporaries in the critical intersectional analysis of oppression, hierarchy, and domination; and to develop our own philosophy at the cutting-edge of feminist, queer, critical race, and cyborg theory.

If you are a woman of color or queer person of color in the free software or free culture community and are interested in being a part of the Empowermentors Collective, please join the mailing list and the #empowermentors IRC channel on freenode. If you are an ally to these issues, please help spread the word!

Rarely does the name of one person, lacking political office or seat of power, echo across the internet so thoroughly as it did in the wake of Aaron Swartz’s death. How was the work of one person revered by so many, from the front page of every major paper in the US, to radical communities working against various axis of oppression?

Aaron Swartz recognized something. In his own words, “Information is power. But like all power, there are those who want to keep it for themselves.” —Guerilla Open Access Manifesto

Based on an image by Jacob Applebaum via Wikimedia. CC-BY-SA 3.0

Many of us have spent time grieving together on message boards, email lists, and with friends. While we mourned the loss of a brilliant hero to a broken and backwards criminal justice system, an outpouring of support for his work roared to life. Almost overnight, recognition of the importance of his mission spread across every corner of the web. What now?

Aaron understood that the way we experience and interact with the world is inseparable from the media and technology around us. He knew that only when they are free from private ownership can we hope to harness their liberatory potential and gain control over our own lives. He has been an invaluable force in the free software and free culture movements, working against the privatization of information, culture, and knowledge.

Aaron fought to tear down the walls that hide big secrets and lock up human knowledge for the profit of the gatekeepers. The pressures which drove him to suicide — up to 50 years in prison and $4 million in fines — were brought against him for a victimless crime. These egregiously harsh punishments for releasing public domain papers locked up on JSTOR may have been due to Aaron’s support of Private Breanna Manning and ties to Wikileaks. Either way, Aaron should have been rewarded.

There is already far too much fear in resisting the powers that Aaron stood up against. We can only carry on his fight by turning this fear into indignation, and indignation into action, just as he did.

In efforts to carry on his work, global hackathons have been planned in his memory; a graduate student made a commitment to free knowledge by boycotting locked-down journals; the Memorial JSTOR Liberator continues the task of releasing public domain documents by crowdsourcing; #PDFTribute was started for authors of academic papers to share their works; and Anonymous defaced the United States Sentencing Commission website with a video threatening a massive exposure of government secrets  in the style of WikiLeaks’ insurance files.

While individual efforts are admirable, Aaron’s work involved much more than opting out of the systems he recognized as broken. He targeted them. He aimed to uproot them. Everything Aaron wrote, whether vernacular or code, was free, but what he died doing was freeing the work of others.

There are already plenty of places to publish and share free cultural works, but this is only half of the battle. The remaining question is how to usurp proprietary knowledge sources. The answer, then, is to eliminate their value by taking the knowledge they amass and release it into the world. Our own rejection of locking up knowledge should be taken for granted. To continue Aaron’s work, we must create an organized movement to take down the gatekeepers which keep hoards of information secret and lock our cultural productions behind their walls.

Today is Ada Lovelace Day, a holiday celebrating the achievements of women in science, technology, engineering and maths.

The Free Software Foundation has a fantastic post up by their new campaigns manager, Libby Reinish, about how “even though there are even less women in computer science than in other STEM fields, and even though the number of women in free software may be even lower than that, [...] the free software movement may be uniquely positioned to do something about it”.

Libby supports this claim with three points: that free software is meant to entirely displace proprietary software and therefore needs to reach people of all races, physical/mental abilities, sexual orientations, and genders; that the free software movement is a community and therefore can come together to intentionally create safer spaces for alternative and non-dominant identity groups; and finally that free software exists to challenge proprietary and hierarchical power structures and therefore needs to align itself with marginalized groups in order to of empowering those most disadvantaged in society.

This applies to free culture as well. Free culture is an expansion of the free software movement, applying the same ideas critical lens of software to technology and media more broadly. Free software is an inseparable element of the free culture movement because without it free media and free thought is not possible. We expand upon the work of the free software movement by also investigating how technology beyond software (for example the structure of the internet) and copyright on all forms of media play into privileging some and oppressing others. In order for free software and free culture to achieve our goals, we must keep Libby’s points in mind and frame our work around critical examination of power and privilege.

QuestionCopyright.org has just published this guest editorial by Kira, who serves on Students for Free Culture’s Board of Directors. This is a follow-up to “Stop the inclusion of proprietary licenses in Creative Commons 4.0” but instead of focusing on the problems with NC and ND, the editorial draws upon defenses of NC and ND to highlight how they go against the stated mission of Creative Commons. You can also read the original post.

A few weeks ago, Students for Free Culture published a detailed and thoroughly cited post calling for the retirement of proprietary license options in Creative Commons 4.0. Already the story has been picked up by Techdirt and Slashdot and it has spurred lots of heated debate around the value of the NonCommercial (NC) and NoDerivatives (ND) licenses to Creative Commons and to rightsholders, but not a lot of discussion has been framed around the official mission and vision of Creative Commons.

Creative Commons has responded to the post stating that adopters of NC and ND licenses “may eventually migrate to more open licenses once exposed to the benefits that accompany sharing,” maintaining that these licenses have been a strategic measure to approach that goal. The name Creative Commons itself highlights the aim of enabling a network of ideas and expressions that are commonly shared and owned or, as we usually call it, the commons. To be very explicit, one need not look any further than Creative Commons’ mission statement (added emphasis) to see that this is what they work for:

Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.

 

Our vision is nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.

The NC and ND clauses are non-free/proprietary because they retain a commercial and/or creative monopoly on the work. Legally protected monopolies by any other name are still incompatible with the commons and undermine commonality. There is no question as to the purpose of Creative Commons or the definition of free cultural works. What Students for Free Culture has offered is not primarily a critique of proprietary licenses, but a critique of Creative Commons’ tactics in providing them. The idea that the non-free licenses “may eventually migrate to more open licenses once exposed to the benefits that accompany sharing” is a reasonable one, but one that deserves careful reflection after a decade of taking that approach.

This line of reasoning is intuitive in a permission culture: that license options which sound good to rightsholders will lure them into giving up some restrictions licenses and becoming more comfortable with the idea of fully liberating their works. Encouraging the use of free culture licenses then becomes a problem of education and communication of values, and the question then becomes whether or not the proprietary licenses make that task easier or more difficult.

Some argue that rightsholders are not ready for free culture and that they need to be eased into it. Anecdotal arguments supporting this idea say that people switch to free licenses from the non-free ones once they learn about how problematic NC and NC are, but there is no evidence to support this claim. We have no idea how strong Creative Commons’ campaign for free licenses would be if they only provided free culture licenses from the start, and Students for Free Culture suggest that in the current climate of copyright and intellectual property maximalism, what we need is to stretch what is accepted as reasonable position to take, not sit comfortably within it.

It may be counter-intuitive that only offering free culture licenses would bring more rightsholders to liberate their works over time, but if we consider that this would allow Creative Commons to have a cohesive message behind the licenses they do offer, we can imagine their educational materials could be much more powerful. More importantly, they would be expanding the perceived realm of possibility. Students for Free Culture argue that the proprietary licenses are mainly used because they are misunderstood and function to reinforce those misconceptions rather than move rightsholders towards free culture. It is analogous to telling people to vote for the lesser of two evils to ease them out of supporting a two-party political system. It may seem practical and appear to bring more steady and reliable change, but it only serves to reinforce the status quo.

The popular criticisms of the post are actually very revealing of this very idea.

All of the defenses of proprietary clauses which have been raised in the recent debate boil down to these types of arguments: that everything should be CC-licensed because it is better than “all rights reserved”; that Creative Commons needs to support all the options that rightsholders want; that not providing more license options is restricting freedom; and that the non-free clauses do serve worthwhile purposes even if they are oppose free culture. These arguments are all problematic in ways either explicitly mentioned or linked to from the original post, and underscore how much extra work this makes for Creative Commons.

The everything-should-be-CC-licensed argument:

• “Big media could adopt NC or ND, but not free culture licenses”
• “So much is already similarly available, it should all be CC”
• “The purpose of Creative Commons is to provide a diversity of options”
• “Creative Commons isn’t an ideological organization about free culture”

These arguments fail to see the mission of Creative Commons and ignores that for years they have been moving away from providing more options in favor of promoting their free culture licenses. Creative Commons does not exist to provide a licensing option for every possible desire of rightholders, nor does it exist to slap a CC logo on every work released under terms similar to what license options they could or currently do offer. We can keep licenses that big media may use for the sake of meaningless adoption, or we can focus on the licenses that subvert intellectual monopolies. Creative Commons could have moved towards being a highly-flexible modular licensing platform that enabled rightsholders to fine-tune the exact rights they wished to grant on their works, but there’s a reason that didn’t happen. We would be left with a plethora of incompatible puddles of culture. Copyright already gives rightsholdors all of the power. Creative Commons tries to offer a few simple options not merely to make the lives of rightsholders easier, but to do so towards the ends of creating a commons. By its very name, Creative Commons does promote an ideology.

The freedom of choice argument:

• “Everyone’s freedom should be respected”
• “This is an effort to dictate our license choices”
• “Promoting freedom by taking away choices is hypocritical”
• “This is just one definition of freedom”

Right off the bat, these arguments miss the fact that the old proprietary licenses will still exist and can be forked and updated, but that is beside the point. They not only confuse different freedoms but, in doing so, also value the legally granted right to restrict freedom over the freedom to be free from those very restrictions. This is the foundation of permission culture and the antithesis of the commons.

The NC-and-ND-clauses-are-useful argument:

• “They serve a purpose even though they aren’t free”
• “A vague protection is better than nothing”
• “These protect us from big media stealing our work”
• “Not everyone wants to use a free culture license”

These arguments all seem to be built around the popular discontent with today’s draconian copyright regime, yet they are at the same time apologetic towards the permission culture which enables it. While NC and ND appear to empower creators to retain control over their work, it is crucial to remember what copyright is: a legal construct of private property and, more specifically, a monopoly. Distributing these innumerable government-granted monopolies, even to individuals, only leads to monopolistic organizations that amass ownership and control over huge sums of our culture. Again, Creative Commons could have provided a totally customizable framework for rightsholders to pick what rights to grant for each of their works, but copyright already gives them that power. Making it easier to do only validates the fears that made copyright what it is today. Take, for example, the Free Software Foundation. If they had advocated for any proprietary software/licenses that were anything “better” than the terms that Windows and OS X are distributed under, the world would not be as open to the idea of free software as it is today.

These three types of arguments exclude those that have been made purely concerned with the interests of rightsholders and the many many interesting and creative misunderstandings of the license terms and enforceability. This all serves to indicate that Creative Commons’ current strategy is working against all of the great work they do promoting a freer culture. People don’t need to be convinced that copyright is a broken system. Instead, Creative Commons should be focusing on affecting what people believe is an acceptable position, showing the world that much more is possible, and proving that we can and are building a free culture.

Over the past several years, Creative Commons has increasingly recommended free culture licenses over non-free ones. Now that the drafting process for version 4.0 of their license set is in full gear, this is a “a once-in-a-decade-or-more opportunity” to deprecate the proprietary NonCommercial and NoDerivatives clauses. This is the best chance we have to dramatically shift the direction of Creative Commons to be fully aligned with the definition of free cultural works by preventing the inheritance of these proprietary clauses in CC 4.0′s final release.

The concept of free culture has its roots in the history of free software (popularly marketed as “open source software”), and it’s an important philosophical underpinning to the CC license set. As with free software, the word “free” in free culture means free as in freedom, not as in price, but Creative Commons has not set or adhered to any standard or promise of rights or taken any ethical position in their support of a free culture. The definition of free cultural works describes the necessary freedoms to ensure that media monopolies cannot form to restrict the creative and expressive freedoms of others and outlines which restrictions are permissible or not. Although Creative Commons provides non-free licenses, the fact that they recognize the definition reveals a willingness and even desire to change.

Creative Commons started off by focusing much more on flexibility for rightsholders, but since its early days, the organization has moved away from that position. Several projects and licenses have been retired such as the Sampling, Founders’ Copyright, and Developing Nations License. It’s obvious that something like Founders’ Copyright which keeps “all rights reserved” for 14 years (before releasing into the public domain) is not promoting free culture. Giving rightsholders more options and easier ways to choose what rights they want to give others actually reinforces permission culture, creates a fragmented commons, and takes away freedom from all cultural participants.

What’s wrong with NC and ND?

The two proprietary clauses remaining in the CC license set are NonCommercial (NC) and NoDerivatives (ND), and it is time Creative Commons stopped supporting them, too. Neither of them provide better protection against misappropriation than free culture licenses. The ND clause survives on the idea that rightsholders would not otherwise be able protect their reputation or preserve the integrity of their work, but all these fears about allowing derivatives are either permitted by fair use anyway or already protected by free licenses. The NC clause is vague and survives entirely on two even more misinformed ideas. First is rightsholders’ fear of giving up their copy monopolies on commercial use, but what would be considered commercial use is necessarily ambiguous. Is distributing the file on a website which profits from ads a commercial use? Where is the line drawn between commercial and non-commercial use? In the end, it really isn’t. It does not increase the potential profit from work and it does not provide any better protection than than Copyleft does (using the ShareAlike clause on its own, which is a free culture license).

The second idea is the misconception that NC is anti-property or anti-privatization. This comes from the name NonCommercial which implies a Good Thing (non-profit), but it’s function is counter-intuitive and completely antithetical to free culture (it retains a commercial monopoly on the work). That is what it comes down to. The NC clause is actually the closest to traditional “all rights reserved” copyright because it treats creative and intellectual expressions as private property. Maintaining commercial monopolies on cultural works only enables middlemen to continue enforcing outdated business models and the restrictions they depend on. We can only evolve beyond that if we abandon commercial monopolies, eliminating the possibility of middlemen amassing control over vast pools of our culture.

Most importantly, though, is that both clauses do not actually contribute to a shared commons. They oppose it. The fact that the ND clause prevents cultural participants from building upon works should be a clear reason to eliminate it from the Creative Commons license set. The ND clause is already the least popular, and discouraging remixing is obviously contrary to a free culture. The NonCommercial clause, on the other hand, is even more problematic because it is not so obvious in its proprietary nature. While it has always been a popular clause, it’s use has been in slow and steady decline.

Practically, the NC clause only functions to cause problems for collaborative and remixed projects. It prevents them from being able to fund themselves and locks them into a proprietary license forever. For example, if Wikipedia were under a NC license, it would be impossible to sell printed or CD copies of Wikipedia and reach communities without internet access because every single editor of Wikipedia would need to give permission for their work to be sold. The project would need to survive off of donations (which Wikipedia has proven possible), but this is much more difficult and completely unreasonable for almost all projects, especially for physical copies. Retaining support for NC and ND in CC 4.0 would give them much more weight, making it extremely difficult to retire them later, and continue to feed the fears that nurture a permission culture.

Why does this need to happen now?

People have been vocal about this issue for a long time, and awareness of the problematic nature of ND and NC has been spreading, especially in the areas of Open Educational Resources (such as OpenCourseWare) and Open Access to research. With the percentage of CC-licensed works that permit remixing and commercial use having doubled since Creative Commons’ first year, it’s clear that there is a growing recognition that the non-free license clauses are not actually necessary, or even good.

Both NC and ND are incompatible with free licenses and many, if not the vast majority, of NC and ND licensed works will not be relicensed after CC 4.0, so the longer it takes to phase out those clauses, the more works will be locked into a proprietary license. There will never be a better time than this. Creative Commons has been shifting away from non-free licenses for several years, but if it does not abandon them entirely it will fail as a commons and divide our culture into disconnected parts, each with its own distinct licence, rights and permissions granted by the copyright holders who ‘own’ the works.

In December of 2006, Creative Commons implemented a subtle difference between the pages for free culture and non-free licenses: green and yellow background graphics (compare Attribution-ShareAlike to Attribution-NonCommercial). This was also when they began using license buttons that include license property icons, so that there would be an immediate visual cue as to the specific license being used before clicking through to the deed. In February of 2008, they began using a seal on free culture licenses that said “Approved for Free Cultural Works“, which was another great step in the right direction. In July of this year, Creative Commons released a completely redesigned license chooser that explicitly says whether the configuration being used is free culture or not. This growing acknowledgement of free vs. non-free licenses was a crucial development, since being under a Creative Commons license is so often equated with being a free cultural work. Now, retiring the NC and ND clauses is a critical step in Creative Commons’ progress towards taking a pro-freedom approach.

The NC and ND clauses not only depend on, but also feed misguided notions about their purpose and function. With that knowledge, it would be a mistake not to retire them. Creative Commons should not depend on and nurture rightsholders’ fears of misappropriation to entice them into choosing non-free CC licenses. Instead of wasting effort maintaining and explaining a wider set of conflicting licenses, Creative Commons as an organization should focus on providing better and more consistent support for the licenses that really make sense. We are in the perfect position to finally create a unified and undivided commons. Creative Commons is at a crossroads.This decisive moment will in all likelihood bind their direction either being stuck serving the fears that validate permission culture or creating a shared commons between all cultural participants.

We don’t want the next generation of the free culture movement to be saddled with the dichotomies of the past; we want our efforts to be spent fighting the next battles.

What should we do?

There have been lots of discussions on the CC-license list about promoting free culture licenses and discouraging proprietary ones. A couple of proposals have been made to encourage the use of free licenses over the non-free ones.

One is a rebranding of the non-free licenses. They could be differentiated in a much more significant way than it currently is, such as referring to NC and ND as the “Restricted Commons” or “Limited Commons” or some variant thereof. License buttons could also be color coded in the same way that license pages are (green for free culture licenses, yellow for proprietary ones). Another proposal is to rename NonCommercial to something more honest such as CommercialMonopoly.

While these proposals and other ideas are certainly worth supporting, we should not lose sight on our ultimate goal: for Creative Commons to stop supporting non-free licenses. We should not feel like this is impossible to achieve at this point, as it will be much more difficult to do later. More people than ever are starting to advocate against proprietary CC licenses, and there is clear evidence and reasoning behind these arguments. We have the power to prevent the inclusion of non-free clauses in this upcoming version of the Creative Commons License set.

To join us in resisting the inclusion of proprietary clauses in CC 4.0, there are a few important things you can do: