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

Making a Big Deal of Nothing

[TheSpoom]

Well, first things first:

Yet one interesting point he throws out has me pondering, is a Creative Commons License permanently irrevocable once it's put out there?

In answer, this is from the CC Attribution-NonCommercial license (bold and italics added for emphasis):

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work...

So clearly it *is* permanantly irrevocable, which is a good thing. If it weren't, how could the end user be assured that her or his freedoms to use the software (or whatever) under the license would still be there in the future? This way, an author can't just say "this isn't working out for me, now you have to pay me $10 to keep using [whatever]," as that would be tantamount to extortion.

Additionally, from the linked Register article:

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.

This is why there is a Non-Commercial version of the license. And this is also why having a work distributed under a CC license doesn't prevent you from ALSO licensing it under other licenses! That's the whole idea of the NC versions of the license: if someone wants to use your work commercially, they can contact you to work out another arrangement so that you would get some form of compensation for the profits that they might make off of your work.

But seriously, if you don't like the license, make your own! Nobody's forcing people to use these licenses and I don't see why this person seems to think that they're creating a "crisis" of sorts. Creative Commons licenses are just an easy way of having your work distributed the way you want, and with a license written by a lawyer so that there are no possible loopholes for which someone could take advantage.

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.

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.

There is a reason that some despise the CC...

[Generalisimo Zang]

So *what* is the big deal with these guys that they so despise CC and act like it is something that it is not? I want to think it is more then trolling for hits, but there doesn't seem to be any other motive that I can tell...

The point is that those whose livelihoods depend upon acting as go-betweens between the creators of "IP", and the consumers of "IP", feel threatened by the possibilities of the internet in general, and the FOSS movement in particular.

For two thousand years, creative people wrote books. THey wrote these books because they wanted to write them, and because they wanted people to read them.

How much money do you think Livy made for writing "Discourses"? How much money did Julius Ceasar make from writing "The Gallic War", and "The Cival War"? How much did Machiavelli make from having written "The Prince"?

In all three cases, the answer is not very much. They didn't write those books to make money from renting out puplication rights... they each had other motives that did not involve money.

So now we fast-forward to 2005, where there is an ingrained cultural meme that ALL human interaction MUST be motivated by the exchange of folding money... except there are many creative people who have the same motives that the authors and creators of past centuries had. Thier motives for writing a book, or a play, or a computer program may not involve money.

This, of course, is very worrisome to those whose entire existence is predicated upon their ability to stick themselves inbetween creators and viewers, and to leech a living from that position.

The leeches see that their two-century-long free lunch on the blood of creative people may soon be coming to an end.

So they wiggle and whine about any liscense that cuts them out of the transaction. Oh, boo hoo hoo, the GPL will end the world, or boo hoo hoo, the CC liscense will end all existence. Heh, and for the leech-like middlemen, they're correct :)