The Creative Common Misunderstanding

  Florian Cramer

  Oct. 8, 2006

   Lately, the growing popularity of the Creative Commons licenses has
   been accompanied by a growing amount of criticism. The objections are
   substantial and boil down to the following points: that the Creative
   Commons licenses are fragmented, do not define a common minimum
   standard of freedoms and rights granted to users or even fail to meet
   the criteria of free licenses altogether, and that unlike the Free
   Software and Open Source movements, they follow a philosophy of
   reserving rights of copyright owners rather than granting them to
   audiences. Yet it would be too simple to only blame the Creative
   Commons organization for those issues. Having failed to set their own
   agenda and competently voice what they want, artists, critics and
   activists have their own share in the mess.

   In his paper "Towards a Standard of Freedom: Creative Commons and the
   Free Software Movement," free software activist Benjamin Mako Hill
   analyzes that "despite CC's stated desire to learn from and build upon
   the example of the free software movement, CC sets no defined limits
   and promises no freedoms, no rights, and no fixed qualities. Free
   software's success is built upon an ethical position. CC sets no such
   standard."{1} In other words, the Creative Commons licenses lack an
   underlying ethical code, political constitution or philosophical
   manifesto such as the Free Software Foundation's Free Software
   Definition or Debian's Social Contract and the Open Source
   Initiative's Open Source Definition.{2} Derived from each other,
   these three documents all define free and open source software as
   computer programs that may be freely copied, used for any purpose,
   studied and modified on source code level and distributed in modified
   form. The concrete free software licenses, such as the GNU General
   Public License (GPL), the BSD license and the Perl Artistic License,
   are not ends in themselves, but only express individual
   implementations of those constitutions in legal terms; they translate
   politics into policies. 

   Such politics are absent from the Creative Commons. As Mako Hill
   points out, the "non-commercial" CC licenses prohibit use for any
   purpose, the "no-derivatives" licenses prohibit modification, and the
   CC "Sampling License" and "Developing Nations License" even disallow
   verbatim copying. As a result, none of the user rights granted by free
   and open source software are ensured by the mere fact that a work has
   been released under a Creative Commons license. To say that something
   is available under a CC license is meaningless in practice. Not only
   does the CC symbol look like a fashion logo, it also isn't more than
   one. Richard Stallman, founder of the GNU project and author of the
   Free Software Definition, finds that "all these licenses have in
   common is a label, but people regularly mistake that common label for
   something substantial."{3} Yet some if only vague programmatic
   substance is expressed in CC's motto "Some rights reserved." Beyond
   being, quote Mako Hill, a "relatively hollow call," this slogan
   factually reverses the Free Software and Open Source philosophy of
   reserving rights to users, not copyright owners, in order to allow the
   former to become producers themselves. 

   While Mako Hill embraces at least a few of the CC licenses, such as
   the ShareAlike License under which his own essay is available,
   Stallman finds it a "self-delusion to try to endorse just some of the
   Creative Commons licenses, because people lump them together; they
   will misconstrue any endorsement of some as a blanket endorsement of
   all."{4} According to an entry on his weblog, Stallman had "asked
   the leaders of Creative Commons privately to change their policies,
   but they declined, so we had to part ways."{5} The Debian project
   even considers all CC licenses non-free and recommended, in 2004, that
   "authors who wish to create works compatible with the Debian Free
   Software Guidelines should not use any of the licenses in the Creative
   Commons license suite,"{6} mostly because their attribution clause
   limits modifications, because of restrictions on the Creative Commons
   trademark and ambiguously worded anti-"Digital Rights Management"
   (DRM) provisions that could be interpreted as prohibiting distribution
   over any encrypted channel, including for example PGP-encoded E-Mail
   and anonymizing proxy servers. 

   Whatever stance one may adopt, the name "Creative Commons" is
   misleading because it doesn't create a commons at all. A picture
   released, for example, under the Attribution-ShareAlike license cannot
   legally be integrated into a video released under the
   Attribution-NonCommercial license, audio published under the Sampling
   License can't be used on its soundtrack. Such incompatible license
   terms put what is supposed to be "free content" or "free information"
   back to square one, that is, the default restrictions of copyright -
   hardly that what Lawrence Lessig, founder of the Creative Commons,
   could have meant with "free culture" and "read-write culture" as
   opposed to "read-only culture." In his blog entry "Creative Commons Is
   Broken," Alex Bosworth, program manager at the open source company
   SourceLabs, points out that "of eight million photos" posted under a
   CC license on Flickr.com "less than a fifth allow free remixing of
   content under terms similar to an open source license. More than a
   third don't allow any modifications at all."{7} The "principle
   problem with Creative Commons," he writes, "is that most of the
   creative commons content is not actually reuseable at all." 

   While these problems may at least hypothetically be solved through
   improvements of the CC license texts - with the license compatibility
   clauses in the draft of the GNU GPL version 3 as a possible model -,
   there are farther-reaching issues on the level of politics as opposed
   to merely policies. CC's self-definition that "our licenses help you
   keep your copyright while inviting certain uses of your work - a `some
   rights reserved' copyright" translate into what the software developer
   and Neoist Dmytri Kleiner phrases as follows: "the Creative Commons,
   is to help `you' (the `Producer') to keep control of `your' work."
   Kleiner concludes that "the right of the `consumer' is not mentioned,
   neither is the division of `producer' and `consumer' disputed. The
   Creative `Commons' is thus really an Anti-Commons, serving to
   legitimise, rather than deny, Producer-control and serving to enforce,
   rather than do away with, the distinction between producer and
   consumer."{8} Citing Lessig's examples of DJ Dangermouse's "Grey
   Album" and Javier Prato's "Jesus Christ: The Musical" - "projects
   torpedoed by the legal owners of the music used in the production of
   the works" - Kleiner sharply observes that "the legal representatives
   of the Beatles and Gloria Gaynor could just as easily have used
   Creative Commons licences to enforce their control over the use of
   their work." 

   The distinction between "consumers" and "producers" couldn't be more
   bluntly stated than on CC's home page. It displays, on its very top,
   two large clickable buttons, one labelled "FIND Music, photos and
   more," the other "PUBLISH Your Stuff, safely and legally," the former
   with a down arrow, the latter with an up arrow in its logo.{9} The
   small letters are no less remarkable than the capitals. Upon first
   glance, the adverbs "safely and legally" sound odd and like material
   for a future cultural history museum of post-Napster and post-9/11
   paranoia. But above all, they name and perpetuate the fundamental
   misunderstanding artists seem to have of the Creative Commons: Free
   licenses were not meant to be, and aren't, a liability insurance
   against getting sued for use of third-party copyrighted or trademarked
   material. Whoever expects to gain this from putting work under a
   Creative Commons license, is completely mistaken. 

   Artists are desperately looking for a solution to a problem that
   ultimately resulted from their own efforts of redefining art. When art
   was granted, in Western cultures at least, an autonomous status,
   artists were - to a moderate degree - exempt from a number of legal
   norms. Kurt Schwitters was not sued for collaging the logo of German
   Commerzbank into his "Merz" painting which yielded his "Merz" art.
   Neither did Andy Warhol receive injunctions for using Coca Cola's and
   Campbell's trademarks. As long as these symbols remained inside the
   art world, they did not raise corporate eyebrows. Experimental artists
   embraced the Internet just because it did away with the separation of
   white cubes - in which logos and trademarks were safe from being mixed
   up with the original ones - and the outside world. Mainly thanks to
   the Internet, artistic simulations of corporate entities were
   believable for the first time. The Yes Men could pose as the World
   Trade Organisation and get invited to World Economic Forum as WTO
   representatives, 0100101110101101.org could tactically disguise
   themselves as the Nike company. Older artistic simulations like Res
   Ingold's "Ingold Airlines" were not only transparent and clumsy in
   comparison, but also on the safe grounds of an art system with little
   or no interference of corporate lawyers. But ever since the World Wide
   Web, file sharing and cheap or free authoring software tore down walls
   between art and non-art practice, producers and consumers, former
   consumers were held liable as producers, and artistic production
   became subject to non-art world norms, as obvious in the FBI
   investigations of Steve Kurtz and ubermorgen.com for bioterrorism,
   respectively tampering the U.S. presidential elections.

   Previous artistic critiques of corporate and intellectual ownership
   were much less efficacious even where they were programmatically more
   radical. Between 1988 and 1989, a series of countercultural "Festivals
   of Plagiarism," organized by Stewart Home, Graham Harwood and others,
   struggled with wide gaps between radical anti-copyright rhetoric and
   an artistic practice limited mostly to photocopied mail art work. John
   Berndt, a participant of the London Festival of Plagiarism, left with
   the impression that "a repetitive critique of 'ownership` and
   'originality` in culture was juxtaposed with collective events, in
   which a majority of participants [...] simply wanted to have their
   'aesthetic` and vaguely political artwork exposed,"{10} making
   fellow Neoist tENTATIVELY, a cONVENIENCE conclude that "Festivals of
   Recycling might have been more accurate descriptions" for the events:
   "By virtue of calling the act of reusing and changing previously
   existing material (not even always with the intention of critiqueing
   said material) 'Plagiarism` the appearance of being 'radical` could be
   given to people whose work was otherwise straight out of art school
   teachings."{11} 

   Today, similar gaps and misunderstandings exist between copyleft
   activists and artists who just seek to legitimize their use of
   third-party material. When Lawrence Lessig characterizes the Creative
   Commons as "'fair use`-plus: a promise that any freedoms given are
   always in addition to the freedoms guaranteed by the law,"{12}
   this is technically correct, but nevertheless misunderstandable,
   especially for people who aren't legal experts. Putting a work under a
   CC license - or even a non-ambiguously free GNU or BSD license - means
   to grant rather than to gain uses in addition to standard fair use.
   The Creative Commons do not solve the problem of how not to get sued
   by Coca Cola or Campbell's at all. Non-free copyrighted material
   cannot be freely incorporated into one's work no matter what license
   one choses. Even worse, the opposite is true: copyright owners are
   most likely to categorically refuse clearance for anything that will
   be put into free circulation because the license of the work
   incorporating their's would effectively relicense the latter. If, for
   example, the Corbis corporation would permit the photograph of
   Einstein sticking out his tongue - for which it holds the rights - to
   be reproduced in a freely licensed book, it would free the picture for
   anyone else's use as well. Since this can hardly be expected from the
   Bill Gates-owned company, free licensing often restrains rather than
   expands one's possibilities of using third-party material. 

   This example reveals a crucial difference between software development
   and artistic practice: Programming can sustain itself on its own,
   self-built library of reusable work, art hardly so. The GNU copyleft
   works on the premise that modifications are also contributions. If,
   for example, a company like IBM choses to modify the Linux kernel to
   run on its own servers, the GNU license forces it to give back the
   added code to the development community. And the more code is
   available as free software, the higher the incentive for others to
   simply build on existing free code libraries and give back changes
   rather than building a new program from scratch. This explains why
   even for computer companies, free software development can make more
   economic sense than the close source commercial model. In addition,
   free software development profits from a difference between source
   code and perceivable appearance that doesn't have an exact equivalent
   in most artistic work: Programs can be written that look and behave
   similar or identical to proprietary counterparts as long as they don't
   use proprietary code and do not infringe on patents and trademarks.
   This way, AT&T's Unix could be rewritten as BSD and GNU/Linux, and
   Microsoft Office could be cloned as OpenOffice. Even patents which
   could spoil such borrowings aren't as internationally universal and
   not remotely as long-lasting as copyright. In other words, free
   software development could be an "appropriation art" without copyright
   infringement.

   The same isn't possible for most artists, however. It makes little
   sense for them to restrict their uses to material whose copyright has
   either expired or that has been released under sufficiently free
   terms. The Coca Cola logo can't be cloned as a copylefted "FreeCola"
   logo, and it would be pointless for the Yes Men to pose as an
   "OpenWTO" or for 0100101110101101.org to have run as "GNUke" instead
   of Nike. If even harmless collaging, sampling and quoting becomes
   risky because of media industrial Internet copyright paranoia and
   whole business models based on injunctions and lawsuits, this is a
   political matter of fair use, not of free licenses. In the worst case,
   free licenses, all the more fluffy and pseudo-free ones like the
   Creative Commons, could be used to legitimize new restrictions of fair
   use legislation, or even its abolition altogether, with the alibi that
   the so-called "ecosystem," or ghetto, of more or less freely licensed
   work provides enough fair use for those who bother to care.{13} 

   It is not hard to bash the Creative Commons for being an organization
   run with little understanding of the arts, and not even a good
   understanding of open source and free software philosophy. On the
   other hand, artists themselves have failed to voice themselves what
   they want. The exceptions are few and rather marginal: the
   anti-copyright philosophies and politics of Lautréamont, Woody Guthrie
   (who, according to Dmytri Kleiner, released his songbook with the
   license that "anybody caught singin' it without our permission, will
   be mighty good friends of ours, cause we don't give a dern. Publish
   it. Write it. Sing it. Swing to it. Yodel it"), Lettrists,
   Situationists, Neoists, Plunderphonics musicians and some Internet
   artists including the French artlibre.org collective whose "Free Art
   License" predates the Creative Commons by two years.{14} 

   A team of lawyers whose work consists of creating, as Bosworth puts
   it, "low cost legal templates," the Creative Commons organization has
   simply listened to all kinds of artists and activists, trying to do
   justice to diverse and sometimes contradictory needs and expectations,
   with licenses "designed to give artists choice" (Mako Hill) rather
   than prioritizing free use and reuse of information. In contrast, Free
   Software and Open Source are, like any human and civil rights effort,
   universalist at their core, with principles that are neither
   negotiable, nor may be culturally relativized.

   If someone is to blame for the fact that artists, political activists
   and academics from the humanities have largely failed to recognize
   those essentials, then it is Eric S. Raymond, founder of the "Open
   Source Initative" (http://www.opensource.org), the group that
   coined the term "Open Source" in 1998. The main advantage of the term
   "Open Source" over "Free Software" is that it doesn't merely refer to
   computer programs, but evokes broader cultural connotations.{15}
   For most people with artistic backgrounds, GNU's "Free Software"
   sounded too confusingly similar to (close-source) "freeware" and
   "shareware." "Open Source" sparked an all the richer imagination as
   Raymond didn't simply pitch it as an alternative to proprietary
   "intellectual property" regimes, but as a "Bazaar" model of open,
   networked collaboration. Yet this is not at all what the Open Source
   Initiative's own "Open Source Definition" says or is about. Derived
   from Debian's "Free Software Guidelines," it simply lists criteria
   licenses have to meet in order to be considered free, respectively
   open source. The fact that a work is available under such a license
   might enable collaborative work on it, but it doesn't have to by
   definition. Much free software - the GNU utilities and the free BSDs
   for example - is developed by rather closed groups and committees of
   programmers in what Raymond calls a "Cathedral" methodology.
   Conversely, proprietary software companies such as Microsoft may
   develop their code in distributed "Bazaar" style. Nevertheless, the
   homepage of http://www.opensource.org states that the "basic idea
   behind open source" is about how "software evolves," "at a speed that,
   if one is used to the slow pace of conventional software development,
   seems astonishing," thus producing "better software than the
   traditional closed model." Regardless which position one takes in the
   philosophical and ideological dispute between "Free Software" and
   "Open Source," the self-characterization of Open Source as a
   development model mixes up cause and effect, being inconsistent with
   what the Open Source Definition, on the same website, qualifies as
   Open Source, i.e. software whose licenses fulfill its criteria of
   openness.

   Given how "Open Source" has been propagated as a model of networked
   collaboration instead of user rights or free infrastructures, the gap
   between the lip-service paid to it in the arts and humanities and the
   factual use of free software and copylefts comes to little surprise.
   "Cultural" free software conferences whose organizers and speakers run
   Windows or the Mac OS on their laptops continue to be the norm. With
   few exceptions, art education hardly ever involves free software, but
   is tied to proprietary software tool chains. Yet - often vague or
   ill-informed - "Open Source" references abound in media studies and
   electronic arts writing.

   The problem is not so much that people do not use free operating
   systems, but that software-political correctness anxiety prevents a
   more honest critical discourse. A debate on "why free software doesn't
   work for us" would be more productive for free software development
   than the current hypocrisy. Recent discussions on why, for example,
   free software culture involves disproportionally few women - even in
   comparison to proprietary software development - have at least begun
   to tackle some of those issues.

   Productive critique, after all, is needed. Eight years after the
   coinage of "Open Source," Raymond's Hegelian claims of superior
   development methodologies sound increasingly hollow. Free software
   hasn't displaced proprietary software at all. Despite its success on
   servers and in embedded systems, it is unlikely to take over
   mainstream personal computing any time soon. Free software, it seems,
   has its strength in building software infrastructure: kernels, file
   systems, network stacks, compilers, scripting languages, libraries,
   web, file and mail servers, database engines. It lags behind
   proprietary offerings, for example, in conventional desktop publishing
   and video editing, and, as a rule of thumb, in anything that isn't
   highly modularized or used a lot by its own developer community. The
   closer the software is to the daily needs and work methods of
   programmers and system administrators, the higher typically its
   quality.

   Similar rules seem to apply to free information, respectively "Open
   Content" development. The model works best for infrastructural,
   general, non-individualistic information resources, with Wikipedia and
   FreeDB (and lately MusicBrainz) as prime examples. Similarly, the
   cultural logic of sounds and images circulating under CC licenses is
   largely that of stock music, stock photography and clip art,
   regardless the fact that current CC licenses mostly fail to permit
   their "mashups," boiling down to little more than "Web 2.0" lifestyle
   logos. Beyond software, infrastructural information and publishing
   that waives reproduction rights, the value of free licensing is
   somewhat doubtful. Experimental, radical art and activism that does
   not play nice with third-party copyrights and trademarks can't be
   legally released and used under whatever license anyway. Its work
   should rather - and explicitly - be released into the public domain
   with, quote jodi, "all wrongs reversed" and, quote Kleiner, "all
   rights detourned under the terms of the Woody Guthrie General License
   Agreement." For professional artists, this simply means to acknowledge
   the reality of contemporary art economics: that artists, with the
   exception of a handful of stars, no longer live from producing
   material goods (for which copyright granted lifetime monopolies, or at
   least the illusion of continuous revenue streams), but like 17th
   century project entrepreneurs from commissioned projects whose
   material products have little or no market value by themselves.

   Copyright, having turned from regulation into subsidy of publishing
   industries, is the 21st century equivalent of drug legislation.
   Everyone knows that it is obsolete, dysfunctional, and depriving
   people of their rights; absurd wars are foughts in its name. The
   simple fix is to abolish it.
     _________________________________________________________________

  Fußnoten

   {1} Benjamin Mako Hill, Towards a Standard of Freedom: Creative
   Commons and the Free Software Movement,
   http://www.advogato.org/article/851.html

   {2} http://www.gnu.org/philosophy/free-sw.html,
   http://www.debian.org/social_contract,
   http://www.opensource.org/docs/definition.php

   {3} http://www.linuxp2p.com/forums/viewtopic.php?p=10771

   {4} http://www.linuxp2p.com/forums/viewtopic.php?p=10771

   {5} http://www.fsf.org/blogs/rms/entry-20050920.html

   {6} http://lists.debian.org/debian-legal/2004/07/msg01193.html

   {7}
   http://www.sourcelabs.com/blogs/ajb/2006/02/creative_commons_is_br
   oken.html

   {8} Dmytri Kleiner, The Creative Anti-Commons and the Poverty of
   Networks,
   http://info.interactivist.net/article.pl?sid=06/09/16/2053224

   {9} http://creativecommons.org/images/find.gif,
   http://creativecommons.org/license

   {10} John Berndt, Proletarian Posturing and the Strike that Never
   Ends, SMILE magazine, Baltimore, 1988 

   {11} tENTATIVELY, a cONVENIENCE, History Begins where Life Ends,
   self-published pamphlet, Baltimore 1993 

   {12} http://creativecommons.org/weblog/entry/5681 

   {13} This scenario isn't too far-fetched considering Lessig's
   recent advocacy of the non-open file format Adobe/Macromedia's Flash
   which he calls a "crucial tool of basic digital education in a free
   culture" (quotation translated from the German article
   http://www.heise.de/newsticker/meldung/78278/, see also
   http://lwn.net/Articles/199877/) Since proprietary file formats
   cannot be universally accessed and lock information into technology
   whose availability is at the mercy of a single vendor, they restrain
   fair use.

   {14} http://artlibre.org/licence/lal/en/

   {15} It is not coincidental, for example, that the term "Open
   Content" and the web site http://www.opencontent.org was launched
   in 1998 only few months after the first propagation of "Open Source,"
   until its founder David Wiley sacked the initiative in 2004 in order
   to - ironically or not - become a director of Creative Commons.