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.

“A Sensible Compromise,” an editorial published in the Harvard Crimson last week, described the actions of the MPAA in urging universities like Harvard to develop a “written plan to effectively combat the unauthorized distribution of copyright material by users” of the university network in compliance with the Higher Education Opportunity Act of 2008. The Crimson’s take, as suggested by the title, is that these actions and the law that supports them are reasonable and justified.

The evidence for the Crimson’s claim is shaky, based largely on two sweeping claims about intellectual property. The Crimson states as common sense that without an effective intellectual property regime, there will be no incentive for innovation.

But around the world there are well documented examples of innovation and creativity that function in the absence of strong copyright protection: the world’s second largest movie industry, in Nigeria, and the booming “techno brega” scene in Brazil were both documented in the documentary “Good Copy Bad Copy,” which is available for free online. And that’s to say nothing of all of the innovations that took place before the mid-1700s, the works of Mozart, Shakespeare, Michelangelo, and all the others that lived before modern copyright was developed. Lastly, enormous areas of creativity like fashion, cooking, comedy, and even magic tricks operate without copyright protection. Closer to home, the entire academic publishing system functions without authors retaining copyright for their works, instead exchanging their monopoly for the opportunity to publish. Copyright can certainly provide a motivation for entrepreneurs to create, but in light of these examples, The Crimson’s statement that the absence of IP laws would eliminate innovation seems unjustifiable.

The second overbroad claim in the editorial pertains to a concept called “moral rights.” “Intellectual property rights are important,” according to the Crimson, “because each person has a fundamental right to enjoy the fruits of his or her mental labor.” The fact is that that justification is not uncommon in parts of the world, but has no basis in American law. The Constitutional “copyright clause,” in fact, is the only right enumerated in the Constitution with an explicit purpose, and that purpose is incentivization: Congress may secure monopolies for creators in order “to promote the progress of science and the useful arts.” No less than Thomas Jefferson was uncomfortable with the “embarrassment” of monopolies, but conceded that as an incentive, they might be worthwhile. As a fundamental moral right? He never even considered it.

Finally, the editorial talks about the concept of “balance,” and then gets into a discussion of business models, debating whether the ones that exist today are convenient enough to remove the justification for piracy. This discussion is an interesting one, and has a place elsewhere, but let’s not confuse an economic argument with an ideological one. In the world’s premiere institution of higher learning—and truly, in any institution of higher learning—the balance isn’t a question of business models. Should Harvard University, at the urging of a media industry that presumes the students to be criminals, reduce the flow of information available to them?

The MPAA and similar organizations are comfortable to disregard the educational benefits that technology has brought us and to see the Harvard student body as a group of potential criminal freeloaders. One can sympathize with members of the movie industry which, in spite of consistently breaking annual box office records, purports to be having a hard time. And it’s certainly reasonable for a university to discuss what the legal and technical guidelines of its network ought to be. But it’s wrong to kowtow to the demands of a media industry at the cost of Harvard students’ technological autonomy.

Numerous stakeholders, watchdogs, and industry analysts have already commented on yesterday’s public disagreement between Comcast and Level 3 Communications. It’s a fascinating dispute regarding the bizarre world of “peering” agreements.

On the ride to school today, I was disappointed to hear Marketplace cover the story without even mentioning “net neutrality” or the “open internet”.

Below is the letter to the editor I sent this afternoon. Please feel free to comment, cannibalize, or re-send as your own. We need news organizations to do a better job accurately covering issues of internet freedom.

Dear Marketplace,

You missed an opportunity to cover the bigger implications of Level 3′s public complaint against Comcast this morning. Beyond immediate concerns over streaming video, the outcome of this dispute may fundamentally change the open nature of the internet. Users depend on peering agreements among countless intermediary ISPs when they access web services. We may never know the extent to which Level 3 traffic is overwhelming Comcast’s network but their unavoidable conflict of interest demonstrates a profound inability to self-regulate.

Members of Students for Free Culture include tomorrow’s internet users, developers, thinkers, and entrepreneurs. We depend on Marketplace for its critical coverage of the tech industry. Rather than focus on fees for Netflix subscribers, this story sorely needed discussion of the FCC’s struggle with “net neutrality” and Comcast’s pending acquisition of NBC/Universal.

Looking forward to further coverage as the negotiations develop!

Sincerely,

Kevin Driscoll
Students for Free Culture
University of Southern California

Want further reading? Here are some tabs:

• Level 3 press release regarding new fees from Comcast
• Comcast responds on its blog, customers sound off in the comments
• GigaOM Comcast/Level 3 timeline
• Save the Internet lists 7 recent examples of Comcast’s bad behavior
• Public Knowledge calls this a “third strike” against Comcast
• Stop Big Media describes this as Comcast being “caught red-handed”

One of the English language’s most recognized and performed songs is Happy Birthday to You (HBTY), which likely first appeared between 1893 and 1912 as new age-grading standards in American schools increased the need for a common celebratory song. Historian Elizabeth Pleck’s work shows birthday parties as a common practice had only come into vogue around the 1830s, while confection-lovers would wait another 20 years before the modern birthday cake emerged in the 1850s. HBTY is a derivative work combing generally-assumed-to-be-folk lyrics with the tune of Good Morning to All (GMTA) a melody written by and copyright to Mildred J. Hill in 1893. The original GMTA lyrics were penned by her sister, Patty Smith Hill.

Good Morning to All sheet music

Today, after a series of mergers and acquisitions the Warner Music Group claims copyright on HBTY, and current law states it will remain rightful owner in the U.S. Until 2030. This assertion is contested in detail by Professor Robert Brauneis in his paper Copyright and the World’s Most Popular Song. In spite of common belief that it remains under copyright, Braunies’ archival research indicates that HBTY may actual be a public domain work. By recapping his arguments (after the jump), I hope to help other artists understand the importance of documentation and proper registration of works should they seek to obtain copyright protection – as well as to consider problems that can arise from the continued extension of copyright term limits and in turn, the estate-based control of past works. Lastly, I’d like readers to become more aware of the general contributions made by Patty and Mildred Hill to the respective fields of education and musicology.

Read the rest of this entry »

Mark your calendars! The next Students for Free Culture conference will be held on February 19-20, 2011, in New York City! Start thinking about travel plans and funding now!

To get involved with planning the conference, join the conf11 listserv. (Need help subscribing? See the FAQ.)

The hashtag for the conference is #sfcnyc. Feel free to start tracking it and using it on twitter / identica.

Also, our current t-shirts are fantastic (see above), but we all kinda want to make some new ones, too. This is a call for t-shirt designs. Have a cool idea? Design away and send your idea to board-at-freeculture.org so we can look into getting them printed up!

I would like to start a discussion regarding something I’m myself guilty of. I feel there’s no communication between chapters. Sure, we meet every two years at our conference, some are very active in the discussion mailing list, but this is definitely not enough. Chapters are at the battlefront of the issues we are fighting, like closed universities, net neutrality, and copyright law reform.

Currently I feel we are working independently. I think this is not the best approach. Chapters should be collaborating with each other. Sharing ideas and planning activities together. Telling everyone else what they are doing, and how they are doing it.

This is very helpful for many reasons. First, for already established chapters, it’s a way to organize new activities. We can copy and remix what others have done. For new chapters, it is invaluable information. It shows them what we are doing, what they can do too. We have already prepared a chapter kick starter, Year One, but more information is always better.

I also believe this speeds up the planning of activities. For example, if I plan a FOSS Gaming Night for FC@UPRM, I need to prepare a flier to post in the bulletin boards around campus. But, if a chapter decides to host a gaming night as well, or something very similar, they shouldn’t need to make a whole new flier. They should be able to use the same flier/art a chapter already used. It’s only a matter of changing some text and, perhaps, a little bit of remixing. It’s the model we support and sponsor, a bottom-up way of making things. Like Newton once said “If I have seen a little further it is by standing on the shoulders of Giants.”

This is not a new idea. I know there are a couple fliers somewhere in the wiki, but I have no idea where they are, and that’s a problem. There should be a centralized place for all this, and something that is chapter friendly. The wiki can be a good place, but it’s currently more like a labyrinth. Perhaps a couple people from various chapters can join the webteam and do something together. I recently joined the webteam and I’m ready to work on this. Who’s with me?

• The creation of a new mailing list for chapters. Think of it like chapter news. We tell each other what we are doing. It might be short and sweet. Something like “We are talking about ACTA next Thursday.”  Or better yet, attached to the message is some art for the activity.
  • UPDATE: Well, this mailing list exists. I had no idea about it. I don’t know if I’m the only one that didn’t know about it, but, let use that. It already exists here.
• A centralized place for fliers. Something that’s organized and usable.
• Meeting in IRC. I miss the days when chapters would have meetings in IRC. These were planned meetings, not just “Hey Sparragus, what’s up? How’s FC@UPRM doing?” It would also be awesome if the board attended the meetings, too.
• Blogging more! We should be blogging more. In the SFC website, under chapter news, I always see a couple posts every other month. This is great. However, I would love to see more, and specially from more chapters. Blog once for every activity you have. And this is not necessarily blogging for SFC, but blogging for our members, our university, and for the world. We need to make sure the name of Students for Free Culture stands up high, and so does our chapters. Blogging is the easiest and quickest solution for this. Once again, it’s a great way to know what others are doing.

Let’s start conversing with each other! I would love to hear your thoughts on this. What should we do and how should we do it?

See ya all around!

Whether through ignorance or hubris, Facebook has angered many of its users over the last couple of years. No doubt readers of this blog are among them. In a wonderfully reflective blog post, Parker Higgins outlines six principles guiding his reluctant return to Facebook:

• Remember that Facebook is not your friend
• Keep on top of Facebook’s changes
• Manage all your data
• Diversify your services
• Fight for changes
• Support alternatives

Have you been thinking about ending or altering the terms of your relationship to Facebook? What would you add to his list? What challenges have you faced?

Don’t miss Parker’s full blog post here: Using Facebook responsibly.

People might remember Nina Paley Nina Paley from her Creative Commons-Licensed animated film Sita Sings the Blues. This particular animation was created to playfully illustrate some of the reasons that the Electronic Frontiers Foundation exists. (Original video page with description on the EFF website)

Students for Free Culture is proud to announce the inauguration its board of directors for the upcoming academic year.

It’s our pleasure to introduce the five members of the board:

• 
  Kevin Driscoll
  Kevin is the most senior member of the board, having served two prior terms. This month, he will finish his first year as a Ph.D. student at the Annenberg School for Communication and Journalism in the University of Southern California.

• 
  Andrea Fassina
  Andrea is currently in his third year of study doing a Master in Electronics at the University of York in England. Andrea recently started a chapter at U of York, and is leading an effort to bring SFC to the UK.

• 
  Adi Kamdar
  Adi is a rising junior at Yale University, where he is pursuing a Science, Technology, and Society major. He initiated the Yale chapter of SFC, which has garnered national attention for several of its campaigns. He is an undergraduate fellow at the Information Society Project at Yale Law School and will be working at the Berkman Center this summer.

• 
  Parker Phinney
  Parker is a rising junior at Dartmouth, majoring in Computer Science. Parker has founded two SFC chapters (one at his high school and another at Dartmouth), and has led the freeculture.org web team. He interned at Creative Commons last summer and worked this past Winter with SFC alumni on OpenHatch.org.

• 
  Aditi Rajaram
  Aditi is a rising senior at NYU, double majoring in Journalism and Political Science. She has served as Secretary and Vice President of Free Culture @ NYU, and will be serving as President next year.

Special advisors
2009-2010 board members Kevin Donovan and Ben Moskowitz will stay with SFC leadership as special advisors to the board of directors.

Next steps
Please keep an eye out, or join our discussion list, as we share the next steps for SFC and its expansion in the 2010-2011 school year! If you are interested in starting a chapter, or supporting the organization, please be in touch with board@freeculture.org.

We recently unveiled the first members of the Students for Free Culture Faculty Advisory Board: Larry Lessig, Mike Nelson, Ed Felten, and Gabriella Coleman. As I mentioned in that post, formalizing ties with academic leaders is an important step as SFC continues to mature and grow. Today, we’re honored to announce four additional members of the FAB!

Pat Aufderheide, University Professor @ American University; Director, Center for Social Media

Professor Aufderheide examines the effects of the law on artists and the public interest. She is the author of Communications Policy in the Public Interest and Documentary: A Very Short Introduction. In recent years, she has promoted fair use through a series of important best practice guides for various industries. She is closely tied to the artistic community through past and present positions with Kartemquin Films, Sundance Film Festival, and Independent Television Service. Her tweets are here.

Wendy Seltzer, Fellow, Silicon Flatirons Center for Law, Technology, and Entrepreneurship; Fellow, Berkman Center for Internet & Society

Wendy Seltzer has played an influential role in promoting freedom in the digital world for more than a decade. She has taught courses on the intersection of technology, commerce, and law at American University, Oxford, Brooklyn Law School and Northeastern. As the founder of the Chilling Effects Clearinghouse she brought attention to the unfounded legal threats dampening free speech online. She serves on the board of the Tor Project to support privacy online and on the board of the World Wide Web Foundation to advance the web for human empowerment. Her prolific activities are chronicled on her Twitter account here.

James Boyle, William Neal Reynolds Professor of Law @ Duke Law School; Co-founder, Center for the Study of the Public Domain

Professor Boyle is a teacher and writer studying the rising conflict between the intellectual ecology of the public domain and the movement that seeks to enclose it through private means. His books include The Public Domain: Enclosing the Commons of the Mind and Shamans, Software, and Spleens: Law and Construction of the Information Society. Additionally, he co-founded both Science Commons and ccLearn to bring the work of Creative Commons to the specific domains of science and education. He is a frequent commentator in the media, notably through his regular FT column. The blog for his most recent book is here.

Henry Jenkins, Provost Professor of Communication, Journalism and Cinematic Arts @ the University of Southern California;

Professor Jenkins moved to USC in 2009 after a decade as the Director of MIT’s influential Comparative Media Studies program. He has written or edited twelve books that examine media, culture and the interplay between creators and consumers, such as Convergence Culture: Where Old and New Media Collide. He is a highly-respected researcher, receiving grants from the MacArthur Foundation and testifying before the American government. His blog, Confessions of an Aca-Fan, is available here.

[Aufderheide photo licensed CC BY by (fittingly) Wendy Seltzer; Seltzer photo licensed CC BY-NC-SA by foxgrrl; Jenkins photo licensed CC BY by deneyterrio.]