Andrew Orlowski Answers Mail on Creative Commons

chronicon writes "Andrew Orlowski takes another swipe at Creative Commons licensing with a look through the mailbag of responses he received from a previous diatribe on the subject. It's obvious to Mr. Orlowski that creativity is 'all about the benjamins.' Yet one interesting point he throws out has me pondering, is a Creative Commons License permanently irrevocable once it's put out there?"

Comments

Don't Feed The Trolls.

[Bob9113]

Don't feed the trolls. Andrew Orlowski is not simply failing to understand with an open mind and a desire to learn, he is choosing to not understand in order to incite. Don't let yourself be baited.

Same Failed Arguments As Those Against Open Source

[mmurphy000]

Mr. Orlowski's arguments are the same ones as get trotted out time and again against open source. Regardless of whether you think open source is awesome or overrated, it's tough to argue that open source is irrelevant, which is how Mr. Orlowski paints the Creative Commons.

For example, you could easily convert:

The use of an irrevocable Commons license, which effectively ends any hope of the artist being compensated by the creative industries, doesn't seem fair or sensible...

into

The use of an irrevocable [open source] license, which effectively ends any hope of the [programmer] being compensated by the [venture capitalists], doesn't seem fair or sensible...

Similarly:

Issuing the material under [an open source] license may earn them a pat on the back from an expensive American law school, but it pretty much guarantees they won't be compensated.

From two reccie missions we conducted - purely for research purposes, of course - into [CompUSA] last night revealed thousands of people willingly handing over their earnings to enjoy [software]. Their only demand being that it be "Good [Software]".

Is the Creative Commons going to become huge? Perhaps not. But Mr. Orlowski's gotta come up with better arguments than these tired ones.

I Can't Stand Paternalism...

[Comatose51]

The use of an irrevocable Commons license, which effectively ends any hope of the artist being compensated by the creative industries, doesn't seem fair or sensible for most readers.

What is the whole point of his diatribe? It's not like someone took a gun to the artist's head and told him to do it. The artist presumably read and understood what he is doing and did it. Can we just stop this paternalism? If Ray Charles wants to keep his music royalties and rights, he can. It's not as though CC is being pressed into law. It's your material and your choice. Behind his comment is this assumption that most artists are morons and will want to revoke his decision some day. That's perfectly alright and he can. He can release his work under some other license if he likes. CC is just a convient template to use if that's the road you want to take.

And guess what? It is through the sampling of CC music from iRate radio that I discovered new music and purchased copies of artists' other songs. You can give some of your music away for free and keep the rest under copyright. You can do whatever the hell you want with your work. CC is just one option out there. Having choices is usually good.

Changing the default rules

[cfulmer]

US Copyright law is basically just a bunch of restrictive default rules about what people can & can't do with somebody else's work. The author can change these rules, typically by granting a license for other uses. But, if the author fails to do this, then the default rules still apply.

Writing license agreements, though, is generally the purview of lawyers. Because lawyers are expensive and time-consuming, many creators do not go through the trouble, even if they do not want to retain all the default rights. As a result, earing serious liability for infringement, few people subsequently use these works.

With Creative Commons, there is no need to see a lawyer if they don't want to use the default rules -- they have a set of standard agreements already pre-packaged for the layperson to use. As a result, there's virtually no cost to letting people reuse your work.

There's another benefit -- because the agreements are standard, users only need to understand them once. There's no need to see a lawyer to explain each license agreement that comes in through the door.

Isn't this the same guy who...

[plasmacutter]

is now unreasonably railing on ISP's claiming they should not be neutral carriers of data?

I think this guy is hardly one to be considered an "authority" on either copyright, the internet, or creative commons for that matter.

I trust Lessig, a law professor, in his administration of creative commons, and consider his support for the viability of it's license a lot more valuable than that of a journalist who seems to believe "audible magic" would actually work in "on the ground" p2p filtering situations.

Re:Making a Big Deal of Nothing

[NickFortune]

Writing your own license may seem like a good idea until you need to step into court and defend it.

Or if you prefer, you can sign away all your rights to an agency and take whatever they are willing to give you in return. The point isn't that writing licences is easy (I wouldn't know - IANAL) but that you are free to licence your work as you choose and the CC does expands your choices rather than restrict them.

As such, it seems like a good thing.

If it were that simple would we have bi-weekly postings on slashdot about the legitimacy of the GPL in court?

Well we don't really; not since Harald Welte won a case for violation of the GPL. There's still wriggle room for GPL detractors in that (as far as I know) there has yet to be a US test of the licence. But one of the SCO cases should supply that test real soon now. No one seems to think the GPL will be overturned.

Re:Someone will make money off of the work

[martinX]

No problemo, there is a "no commercial use" type of Creative Commons licence available.

To quote them:"Offering your work under a Creative Commons license does not mean giving up your copyright. It means offering some of your rights to any taker, and only on certain conditions."

And specifically, you can choose as part of your licencing conditions: "Noncommercial. You let others copy, distribute, display, and perform your work and derivative works based upon it but for noncommercial purposes only.

Examples: Gus publishes his photograph with a Noncommercial license. Camille incorporates a piece of Gus's image into a collage poster. Camille is not allowed to sell her collage poster without Gus's permission."

Linky

CC licencing was created (I think) to bridge the gap between the full copyright laws and the public domain. It enables people who want to have a bit of fun with something (music, writing, graphics etc)to be able to release it into the wild with some re-use provisos attached.

Is there really any point to it?

[PCM2]

It seems to me that the people who support the idea of the Creative Commons license are the people who believe very strongly in this idea of "the commons." As far as I can tell, this seems to be an idealistic doctrine which says that the sum total of human creative endeavor is the birthright of every human being, and that everybody should ideally have access to every creative work (either now, or at some point in the future). This ideology naturally makes anyone who wants to profit off his/her own creative works tend to bristle. I don't think Creative Commons is really a bad thing in any particular way, though; like Orlowski, I'm just not sure if there's really any need for it.

In practice, the Creative Commons license seems to mainly appeal to people who want to spread their own creative works in some kind of "viral" way. The license is a public statement: Go ahead and take this, use it, don't worry about it, I won't sue you. (And there may be a couple of additional clauses, such as "I won't sue you unless you try to profit from it.")

But how do you define "profit"? If nobody would benefit in any way from the use of your work, then why would they want to use it in the first place? To my mind, benefit and profit are synonymous here. Maybe they don't sell your song. But maybe they post it on a Web site that accepts advertising. Are they profiting from your song then? It seems to me that if you want to set up all these profit/don't profit clauses, you need to write a little bit more fine print than your average Creative Commons license gives you.

Second, copyright law already gives the author of a work absolute and complete control of how it is used. I'll give you an example of how this works. I am the author and copyright holder of a comic strip called The Adventures of Action Item. Since I first drew it in 1999, this comic strip has had a fairly storied existence. It's been e-mailed around the known universe, printed up in magazines, used as a print sample, and it's constantly available on the Web page above. Every now and again someone writes me to ask if they can use it in one way or another, and my response varies.

• When they wanted to print it in a couple of different magazines, I said OK, since it was going to be used as editorial content. But not for free; I negotiated a fee each time. You're selling magazines, I want a cut.
• When people e-mail blast it to all their friends, I do nothing. Not just because it would be a little difficult to do anything about that, but because I honestly don't care. Go right ahead. (Hey look at that, I just got viral distribution and I never used a Creative Commons license.)
• When people want to host it on their own Web sites, on the other hand, I usually decline. Just link to mine, please. Occasionally someone will post it without asking, and occasionally I will find out who they are and ask them to remove it.
• When Xerox wrote to ask me if they could use it as a print sample for one of their printers, I decided that was an acceptable advertising-related purpose, because they weren't trying to co-opt the content or "message" of the strip. The (admittedly garish) colors in the artwork were what was being shown off. Plus they printed it up on cool-looking newsprint stock. I said OK -- and negotiated a fee.
• When companies write to ask me if they can use it in some kind of company publication, however, I usually decline. I don't want the strip associated with their company. It's probably meant to make fun of their company.
• Then again, sometimes people write me and ask if they can print up fifty copies and hand them out as an icebreaker or other materials for a class they're teaching, and I'll probably say that's fine.

The point of all this? Every case is different. But that's just the thing -- existing copyright law gives me that right. I can really do whatever I want with my own works, and I can grant that other people can use them for whatever

Re:Is there really any point to it?

[Bogtha]

It seems to me that the people who support the idea of the Creative Commons license are the people who believe very strongly in this idea of "the commons." As far as I can tell, this seems to be an idealistic doctrine which says that the sum total of human creative endeavor is the birthright of every human being, and that everybody should ideally have access to every creative work (either now, or at some point in the future).

No, that isn't the case. It's more to do with the assumptions people start with.

Most people start with the assumption that copyright is some form of natural property right, so so it follows that it is wrong to take that property away from people. This is wrong.

The only rational basis for any law is to measure its cost and its benefit against the state of nature - the "default", if you will.

Property rights are easily justified (to most people). It's difficult to have a stable society if people can't own property like land, food etc. Tangible things. It's the job of government to pass laws to allow a stable society to exist. So the cost of property rights - the curtailing of our right to simply pick up and use what we want to, when we want to - is vastly outweighed by the benefit of a stable society.

Copyright is another matter. The state of nature gives us the freedom to copy things, derive new works of art from things, advance science based on others' works. These are vital things for a free society of the type most people want. So the cost of simply treating copyright as property is too high.

So a compromise was made. Copyrights would be limited to a short period of time like 14 years, and then it would revert to the public domain; basically be treated the same as in the state of nature. That gives all the benefit of providing in-demand authors with a stable way of generating an income and creating original works as a full-time profession, but the cost to society - the curtailing of our right to copy, etc, is minimised.

After that, of course, the cost to society became greater and greater as corporate entities gained political power, until present day, when many people confuse copyright with property rights.

All many (most?) Creative Commons people are doing is recognising the value to society of limited copyright. That's not the hardcore idealism you make it out to be, it's actually closer to the original form of copyright than the monstrosity it has become today.

But how do you define "profit"?

The license should define this. If it does not, then it remains undefined until a court has to decide one way or another, at which point, it's likely to be defined as it would commonly be understood by a reasonable person.

Second, copyright law already gives the author of a work absolute and complete control of how it is used.

No. It gives the author control over how it is copied. I can buy a copy of your work, and rip it up. You might not like that, but you cannot stop me, because it's my property. You hold the copyright, but I own the property.

I'll give you an example of how this works.

Every single instance of the example you give involves copying. That is what gives you the right to control their actions.

There's really one main thing that I insist on when people want to use any of my copyrighted works for something, though, and that's that you ask me.

Creative Commons licenses are for people who have already decided that the answer to the question is specific circumstances is "yes", and they don't want to be bothered with lots of requests. If you want to decide on a case-by-case basis, then don't use a Creative Commons license. That's your prerogative.