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:

On the White House blog Tom Kalil and Aneesh Chopra are drawing attention to the role that students have in creating innovative online services that drive America forward. Noting the technologies and services as broad as Mosaic and Google that have come from students, they propose:

“an initiative that would cultivate, with student involvement, such a wave of innovation. Although it’s impossible to predict what the next generation of applications will be, universities, companies, and students could work together under such an initiative, which would serve as a sort of “Petri dish” where new ideas could incubate and grow.”

In our net neutrality FCC filing, the Board of SFC made similar points:

Network neutrality is also important to the United States as it struggles to emerge from the current recession and maintain its position as one of the world’s most innovative economies. The centrality of the Internet to students goes beyond the use of Twitter or MySpace. It even goes beyond the application of technology to learning and scholarship. Students can, and do, play an exciting role in American entrepreneurship. One need look no further than the enormously successful examples of Google and Facebook – innovative companies that came from the creativity and persistence of students who had access to a high-quality, open Internet. A transparent and non-discriminatory network removes barriers to entrepreneurs, be they students or otherwise.

Kalil and Chopra encourage students and others to write to broadband@ostp.gov to suggest ideas for how the broadband grant money should be spent.

What are your ideas for promoting student innovation?

As many of you know, following the Free Culture 2008 Conference, Students for Free Culture began the Open University Campaign – an initiative to increase collaboration, sharing, and openness at the level of higher education. With the academic year about to begin, we want to invite all interested parties to assist the with project; after all, we wouldn’t be very genuine if we didn’t do this in an open manner ourselves!

About the Open University Campaign

In October 2008, Students for Free Culture drafted and adopted the Wheeler Declaration which declared that:

“An open university is one in which:

1. The research produced is open access;
2. The course materials are open educational resources;
3. The university embraces free software and open standards;
4. The university’s patents are readily licensed for free software, essential medicine, and the public good;
5. The university’s network reflects the open nature of the Internet,

where “university” includes all parts of the community: students, faculty and administration.”

Out of this agreement has grown the Open University Campaign, of which a major goal is to produce objective, reliable indicators of individual universities’ levels of openness. A primary method through which this will be accomplished is through “report card” style profiles of leading institution of higher learning, similar to College Sustainability Report Cards. Students for Free Culture has already begun this work by defining principles of measurement, researching available resources, and developing surveys to be distributed to universities.

What Will the Open University Report Cards Entail?

Mirroring the Wheeler Declaration, the Open University Report Cards, as currently envisioned, will evaluate schools on five topics:

1. Open Access: Are faculty required to make their scholarship open access? Is the university press publish open access materials?
2. Open Educational Resources: Does the university create OERs? Does the university use OERs?
3. Free and Open Source Software and Standards: Does university computing use FOSS? Are students and faculty required to use proprietary software?
4. Intellectual Property: Is IP revenue transparent? Is IP used to promote innovation, or restrict knowledge?
5. Network Management: Is the network neutral? Is user privacy respected?

Establishing credible criteria under which schools will be assessed will be essential to creating a respected resource. For example, Which schools’ open access policies are currently lacking important criteria? Or, To what extent should a school actively support FOSS? The volunteers currently involved with the project are working through these questions on the wiki page, and we encourage you to join the conversation.

What the Open University Campaign Needs

In order to make this a successful endeavor, Students for Free Culture needs your involvement!

• Are you a student who can research official university open access policies?
• Are you passionate about FOSS and can develop a questionnaire for IT administrators about FOSS policy?
• Are you statistically-inclined and can handle data on universities?
• Are you a web developer who could create a public website for the Open University Report Cards?
• Are you a graphic designer who could create posters to raise awareness on campuses?

In Closing…

The Open University Campaign recognizes that scholastic advancement occurs most readily in an environment of sharing, openness and collaboration. By providing a cross-index of leading universities, the project will add important comparative measurements to encourage increased academic openness. Our hope is that these resources will provide a platform from which openness activists can endeavor to improve the scholastic environment.

Join us by jumping into the wiki, signing up for the Open University mailing list, or emailing board (at) freeculture (dot) org with suggestions or questions!

IssueLab, which seeks to highlight the research that non-profits undertake, is hosting a remix contest. The challenge asks participants to remix one or more of the 300+ Creative Commons licensed reports available on their site with openly licensed video, images and/or music. Prizes include a netbook, flipcam, and more!

Says Gabi Fitz,

The contest is really unique in that it is focused so squarely on connecting students and working artists with the valuable research that nonprofits do… while spotlighting the critical importance of open licensing in the process of remixing for social change.

So, check out the contest website and give your creative side a whirl by Dec 31st.

Tim Hwang has a way of clearly articulating the path forward for Free Culture. Tim, formerly of Harvard Free Culture and now a Berkman Center researcher, recently gave a talk up at the University of Alberta that in many ways is a follow-up to his blog post prior to Free Culture 2008 that probed the future of Students for Free Culture.

In it, Tim posits that the copyfight – the effort started by Stallman, expanded by Lessig & traditionally undertaken by Students for Free Culture – is largely over. There are certainly important issues still at play in that cause, but as Tim explains in the speech here and slides below, the cause of digital freedom has evolved to include much more.

Three important changes in the digital ecosystem have given rise to new issues. In Tim’s thoughtful reckoning, cloud computing, increased bandwidth and broad web services have drastically changed the battle from one of well-structure copyright to one that involves previously unconsidered challenges including:

• Privacy, interoperability and portability
• Filtration
• Access to knowledge

As he notes, the Open University Campaign has positioned SFC to deal with many of these new battles for online freedom, but as we continue to move forward, it will be important to bear in mind the lessons Tim outlines. So take a listen and chime in with your comments!

It’s been about six months since the Free Culture 2008 Conference—time flies! Berkeley is happy to report that the conference was a great success. We got some good press, made some great connections, and generated a little money for the national organization. We were also treated to a barn-burner of a talk by Larry Lessig and finally got everyone together in one room. We’re so grateful to everyone who made the trip and can’t wait for the next event; we hope you had as much fun in the Bay Area as we do on a regular basis. Get hyphy.

What follows is an extremely tardy wrap-up post—call it a post-mortem. Many folks wondered where to find resources, so read on to see what’s available online.

Videos of the conference are now available in three ways. First, check out Free Culture @ Berkeley’s Blip channel (http://freecultureberkeley.blip.tv). Like any good video site, Blip will let you embed the videos on your blog and also download them for archival. They’re available in OGG at archive.org—search “free culture.” Alternately, you can check out FreeCulture.tv on Miro. The videos are licensed CC-BY, so go nuts—spread them all over the world, chop and screw them, burn them on DVDs and sell them. Just make sure SFFC gets a shout out. If you’d like source files, drop us a line at berkeley@freeculture.org.

Also, Alaskan FC-warrior Jacob Caggiano has some great interviews from the conference up on his Vimeo page.

Some great summary posts were written by Tim Hwang, Kevin Donovan, and others (if you’re ever in Mexico and need a Spanish translation of Lessig’s speech, look no further).

Lastly, you should also check out the fc2008 Flickr pool (just watch out: we share #hashtags with FurryCon 2008). I’m particularly fond of the lewd dancing at the afterparty—thanks again to Lone Wolf, ripley, Kid Kameleon, and Refusenik for spinning on the one’s and two’s.

By now everyone who needs reimbursement for travel should have received a check. If you haven’t, contact berkeley@freeculture.org and we’ll check the status. We apologize again for the delay in processing; the travel grants made possible by our generous sponsors Google and Mozilla required that we work with UC Berkeley’s business services, resulting in a longer-than-average reimbursement period. It’s definitely something that SFFC will be working to improve on for future events.

Speaking of future events—it’s about the right time to start plotting the next one. What should we focus on? Who should be there? What are our goals? Speak your mind in the comments!

(photocred: thanks, mecredis!)

Last Friday, TechCrunch posted an article provocatively titled, Did Last.fm Just Hand Over User Listening Data To the RIAA?. Based on a friend-of-a-friend tip, the piece alleged that Last.fm had “handed over” user data to facilitate the identification of U2 fans with leaked copies of the band’s forthcoming album, No Line on the Horizon. (This was before Universal Music Group copped to leaking the album and U2 started streaming it voluntarily.)

Within an hour and a half – midnight for the London-based Last.fm – the allegations were debunked. Employees responded to concerned readers directly,

“[Last.fm would] never personally identify our users to a third party.”

Last.fm’s reputation is saved, TechCrunch are lying liars, the RIAA still sucks, and then I found five dollars. Right?

Not quite. Last.fm, purchased by CBS Interactive in 2007, represents the tension driving this era in computing culture, a constant negotiation of value and privacy. I’ll enrich your database by telling you how many times I’ve rewound Las Mulas De Moreno today (five and counting) and you tell me about similar artists to obsess over tomorrow.

Billboard and Soundscan look like halfblind guesswork in comparison with the charts made possible by this kind of deep data collection. Last.fm’s revenue may draw largely from advertising but if they were to start selling custom data packages to interested corporations, would anyone stop scrobbling?

Like many FCers, I was initially so alarmed at the notion that Last.fm would “hand over” user data that I ignored the fact that Last.fm’s core operations are basically in a constant state of dry snitching on its users. Want to know who is listening to “Las Mulas”? Click the Listeners tab, and start crawling profiles for identifying information.

For some of us, this is reason enough to cease participation. In fact, several FC members have already begun brainstorming a non-commercial, decentralized alternative. Others propose ruining the data reported to Last.fm by deliberately spoofing the scrobbler software with falsified metadata.

But what about those FCers who use Last.fm, enjoy the services it provides, and accept its exchange of privacy for value? Do we demand they sacrifice this pleasure? To what end?

Rather than struggle against enjoyment of Last.fm, what if we were to maximize it? What would an enthusiastic embrace and exploration of a service like Last.fm reveal? Would we find its boundaries and be inspired to develop a successor with even greater capacity? Would it reveal new entrepreneurial opportunities that better protect user privacy without sacrificing the potential benefits of an enormous dataset?

Is this a positive, proactive, fanatic activism? Or surrender to an uncritical consumption?

BOOMBOX from Ely Kim on Vimeo.

Consider the case of YouTube, where thousands of people have been recently burned by spurious copyright claims. Every day YouTube users create and upload videos like the one above that incidentally infringe one or more copyrights. Quite often the videos – again, like the one above – are disabled because of a DMCA takedown notice. If the email we receive at YouTomb is any indication, these users rarely intended to flaunt the law or make a stand for free culture. Rather, they come to us confused at being disciplined for behaving in a way that felt ethically appropriate.

When large copyright holding organizations attempt to withdraw from popular web services, as Warner Music Group has done with both Last.fm and YouTube, they can no longer paint the users of those services as pirates, outsiders, or radicals as they once did with Napster and now do with the Pirate Bay. Instead, their withdrawal brands them perverse, confused, and out of step with widely accepted social practice.

What implications might this reversal have for the free culture activist?

Do we want those YouTube users to familiarize themselves with the arcane constraints of copyright law and the numerous variations we’ve made available? Or should the users be left alone and the regulatory institutions be compelled to struggle with a set of laws and expectations ill-suited to contemporary media ethics?

Imagine a free culture pro-activism that consistently supports, encourages, defends, and extends the everyday practices of users of services like Last.fm and YouTube. What might we gain through such radical participation?

WE HAVE LOTS OF MONEY. WE WANT TO FLY YOU TO CALIFORNIA!

For our upcoming conference in Berkeley, we’ve been blessed with some sponsors who have given us money to fund students to travel from far away to the conference. We still have some of that money left!

So if you are a member of a Students for Free Culture chapter, or are trying to get one off the ground, we would love it if you would come. We would love it so much we can offer to pay (as per our travel funding guidelines) for your flight to Berkeley. It’s been a joy working with the Berkeley team and the other SFC people organizing the conference. It takes place very soon: October 11-12.

So dear all of you students working to promote Free Culture, wherever you are – join us in Berkeley in a week. Get in touch with us by emailing conf08 at freeculture.org.

(My thanks go to others on the conf08 team for reaching out to get this funding!)

This morning, Tim Hwang of Harvard Free Culture posted a provocative critique and vision statement for the future of SFC. Recognizing that “times have changed”, Tim challenges us to consider our role as student activists in today’s salient tensions lest this organization lapse into “irrelevance.” In particular, he suggests four actions to address areas of concern that have not yet received our attention at a national or international level;

1) Create A Preemptive Ultimatum Around Creative Works

2) Connect With the Development Community

3) Encourage Open Access Nationally

4) Promote Data Portability

Tim’s blog post is the perfect starting point for a discussion that we both hope to see carried out in person at October’s conference. I urge you to take a few minutes to read his thoughts and offer your reaction. The conversations around free culture continue to change and so must we.

Well, crap, guys. How did we let this one slip by?

HR 4137, the College Opportunity and Affordability Act just passed Congress and is expected to be signed into law very soon.

Inside the bill is the Campus-Based Digital Theft Prevention act, a provision which requires colleges to subscribe to RIAA-approved services like the new Napster and to install software on the network which monitors and interrupt transfers which they decide they don’t like. This is a mandate for a non-neutral internet on college campuses. Students are being targeted by a cooperation between the government and the intellectual property industry to spy on us, filter our internet and the resources of our schools by spending our tuition costs on their DRM’d service. And unfortunately, we let this slip under the radar.

For the full story about the passing is available on Ars Technica, who have done a better write up than I could do. I also wrote about this on my personal site just over one year ago. It seems the bill has been watered down slightly from the original amendment, but the effect is the same.

But where was the opposition from Free Culture? I’m not trying to blame anyone but myself, but I think that we must develop a way to constantly monitor and publicly oppose this type of legislation. Otherwise, what is the point of our organization if we continue to allow things like this to happen?! We’re going to be an absolute laughing stock if we have silly events which celebrate the death of DRM when we don’t make a sound about federal legislation which requires all of our schools to purchase products which use it. There was only one blog post about the bill, 8 months ago. Not a peep since then, no page on the front page about pending legislation. So I can’t say that we missed this entirely, but a single blog post doesn’t affect anything outside of our own community, which is where the problem lies. It isn’t working because it isn’t enough.

So what are we supposed to do in the meantime?

First, I think we should develop a page (perhaps on the wiki?) and a squad to monitor the progress of legislation which could be a threat to us.

Second, we should be supporting Lawrence Lessig’s Change-Congress Movement which will stop corporations from having so much influence over Congressmen. Particularly Democratic congressmen from California.

Third, I would personally recommend that any student should be using secure protocols for all of their data transfers to prevent their being snooped on and tampered with. One such upcoming protocol is Anomos, a secure and anonymous multi-peer-to-peer file distribution platform. I’m a lead developer on this project and I will write a post on this blog about it once our alpha release candidate is announced.

Does anybody else have any ideas about steps we can take from things like this going unnoticed again? Let’s gets some discussion going in the comments.

Rich, Boston University Free Culture