The Creative Common Misunderstanding
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 theFree Software Movement," free software activist Benjamin Mako Hillanalyzes that "despite CC's stated desire to learn from and build upon the exampleof 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 ethicalposition. CC sets no suchstandard."  Inother words, the Creative Commons licenses lack an underlying ethical code, politicalconstitution or philosophical manifesto such as the FreeSoftware Foundation's Free Software Definition orDebian's Social Contract and the Open SourceInitiative's Open Source Definition. Derived from each other, these three documents all define free and open sourcesoftware as computer programs that may be freely copied, used for any purpose,studied and modified on source code level and distributed in modified form. Theconcrete free software licenses, such as the GNU General Public License (GPL),the BSD license and the Perl Artistic License, are not ends in themselves, butonly express individual implementations of those constitutions in legal terms;theytranslate 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" licensesprohibit modification, and the CC "SamplingLicense" and "Developing Nations License" even disallow verbatim copying. Asa result, none of the user rights granted by free and open source software areensured by the mere fact that a work has been released under a Creative Commonslicense. To say that something is available under a CC license is meaninglessin practice. Not only does the CC symbol look like a fashion logo, it also isn'tmore than one. Richard Stallman, founder of the GNU project and author of theFreeSoftware Definition, finds that "all these licenses have in common is a label,but people regularly mistake that common label for somethingsubstantial." Yet someif only vague programmatic substance is expressed in CC's motto "Some rightsreserved." Beyond being, quote Mako Hill, a "relatively hollowcall," this slogan factually reverses the Free Software and Open Source philosophyof reserving rights to users, not copyright owners, in order to allowthe former to become producersthemselves.
While Mako Hill embraces at least a few of the CC licenses, such as the ShareAlikeLicense under which his own essay is available, Stallmanfinds it a "self-delusion to try to endorse just some of the Creative Commonslicenses, because people lump them together; they will misconstrue any endorsementof some as a blanket endorsement of all." According to an entry on his weblog, Stallman had "asked the leaders of CreativeCommons privately to change their policies, but they declined, so we had to partways."  The Debianproject even considers all CC licenses non-free andrecommended, in 2004, that "authors who wish to create works compatible withthe Debian Free Software Guidelines should not use any of the licenses in theCreative Commons license suite," mostly because their attribution clause limits modifications, because of restrictionson the Creative Commons trademark and ambiguouslyworded anti-"Digital Rights Management" (DRM) provisions that could be interpretedas prohibiting distribution over any encrypted channel, including for examplePGP-encoded E-Mail and anonymizing proxy servers.
Whatever stance one may adopt, the name "Creative Commons" is misleading becauseit doesn't create a commons at all. A picture released, for example, under theAttribution-ShareAlike license cannot legally be integrated into a video releasedunder the Attribution-NonCommercial license, audio published under the SamplingLicense can't be used on its soundtrack. Such incompatible license terms putwhat 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" asopposed to "read-only culture." In his blog entry "Creative Commons IsBroken," Alex Bosworth, program manager at the open source company SourceLabs,points out that "of eight million photos" posted under a CClicense on Flickr.com "less than a fifth allow free remixing of content underterms similar to an open source license. More than a third don't allow any modificationsat all."  The "principleproblem with Creative Commons," he writes, "is that most of the creative commonscontent is not actually reuseable at all."
While these problems may at least hypothetically be solved through improvementsof the CC license texts - with the license compatibility clauses in the draftof the GNU GPL version 3 as a possible model -, there are farther-reaching issueson the level of politics as opposed to merely policies. CC's self-definitionthat "our licenses help you keep your copyright while inviting certain uses ofyour work - a `somerights reserved' copyright" translate into what the software developer and NeoistDmytri Kleiner phrases as follows: "the Creative Commons, is to help `you' (the`Producer') to keep control of `your' work." Kleinerconcludes that "the right of the `consumer' is not mentioned, neither is thedivision of `producer' and `consumer' disputed. The Creative `Commons' is thusreally an Anti-Commons, serving to legitimise, rather than deny, Producer-controland serving to enforce, rather than do away with, the distinction between producerand consumer." Citing Lessig's examples of DJ Dangermouse's "Grey Album" and JavierPrato's "Jesus Christ: The Musical" - "projects torpedoed by the legal ownersof the music used in the production of the works" - Kleiner sharply observesthat "the legal representatives of the Beatles and Gloria Gaynor could just aseasily have used Creative Commons licences to enforce their control over theuse of their work."
The distinction between "consumers" and "producers" couldn't be more bluntlystated than on CC's home page. It displays, on its very top, two large clickablebuttons, one labelled "FIND Music, photos andmore," the other "PUBLISH Your Stuff, safely and legally," the former with adown arrow, the latter with an up arrow in its logo. 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 culturalhistory museum of post-Napster and post-9/11 paranoia. But above all, they nameand perpetuate the fundamental misunderstanding artists seem to have of the CreativeCommons: Free licenses were not meant to be, and aren't, a liability insuranceagainst 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 resultedfrom their own efforts of redefining art. When art was granted, in Western culturesat least, an autonomous status, artists were - to a moderate degree - exemptfrom a number of legal norms. Kurt Schwitters was not sued for collaging thelogo of GermanCommerzbank into his "Merz" painting which yielded his "Merz" art. Neither didAndy 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 corporateeyebrows. Experimental artists embraced the Internet just because it did awaywith the separation of white cubes - in which logos and trademarks were safefrom being mixed up with the original ones - and the outside world. Mainly thanksto the Internet, artistic simulations of corporate entities were believable forthe first time. The Yes Men could pose as the World Trade Organisation and getinvited to World Economic Forum as WTO representatives, 0100101110101101.orgcould tactically disguise themselves as the Nike company. Older artistic simulationslike ResIngold'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 interferenceof corporate lawyers. But ever since the World Wide Web, file sharing and cheapor free authoring software tore down walls between art and non-art practice,producers and consumers, former consumers were held liable as producers, andartistic production became subject to non-art world norms, as obvious in theFBI investigations of Steve Kurtz and ubermorgen.com for bioterrorism, respectivelytamperingthe U.S. presidential elections.
Previous artistic critiques of corporate and intellectual ownership were muchless efficacious even where they were programmatically more radical. Between1988 and 1989, a series of countercultural "Festivalsof Plagiarism," organized by Stewart Home, Graham Harwood and others, struggledwith wide gaps between radical anti-copyright rhetoric and an artistic practicelimited mostly to photocopied mail art work. John Berndt, a participant of theLondon Festival of Plagiarism, left withthe impression that "a repetitive critique of 'ownership` and 'originality` inculture was juxtaposed with collective events, in which a majority of participants[...] simply wanted to have their'aesthetic` and vaguely political artwork exposed," making fellow Neoist tENTATIVELY, a cONVENIENCE conclude that "Festivals of Recyclingmight have been more accurate descriptions" forthe events: "By virtue of calling the act of reusing and changing previouslyexisting material (not even always with the intention of critiqueing said material)'Plagiarism` the appearance of being 'radical` could be given to people whosework was otherwise straightout of art school teachings." 
Today, similar gaps and misunderstandings exist between copyleft activists andartists who just seek to legitimize their use of third-party material. When LawrenceLessig characterizes the CreativeCommons as "'fair use`-plus: a promise that any freedoms given are always inaddition to the freedoms guaranteed by the law," this is technically correct, but nevertheless misunderstandable, especially forpeople who aren't legal experts. Putting a work under a CC license - or evena non-ambiguously free GNU or BSD license - meansto grant rather than to gain uses in addition to standard fairuse. The Creative Commons do not solve the problem of how not to get sued byCoca Cola or Campbell's at all. Non-free copyrighted material cannot be freelyincorporated into one's work no matter what license one choses. Even worse, theopposite is true: copyright owners are most likely to categorically refuse clearancefor anything that will be put into free circulation because the license of thework incorporating their's would effectively relicense the latter. If, for example,the Corbis corporation would permit the photograph of Einstein sticking out histongue - for which it holds the rights - to be reproduced in a freely licensedbook, it would free the picture for anyone else's use as well. Since this canhardly be expected from the Bill Gates-owned company, free licensing often restrainsrather than expands one's possibilities of usingthird-party material.
This example reveals a crucial difference between software development and artisticpractice: Programming can sustain itself on its own, self-built library of reusablework, art hardly so. The GNU copyleft works on the premise that modificationsare also contributions. If, for example, a company like IBM choses to modifythe Linux kernel to run on its own servers, the GNU license forces it to giveback the added code to the development community. And the more code is availableas free software, the higher the incentive for others to simply build on existingfree code libraries and give back changes rather than building a new programfrom scratch. This explains why even for computer companies, free software developmentcan make more economic sense than the close source commercial model. In addition,free software development profits from a difference between source code and perceivableappearance that doesn't have an exact equivalent in most artistic work: Programscan be written that look and behave similar or identical to proprietary counterpartsas long as they don't use proprietary code and do not infringe on patents andtrademarks. Thisway, AT&T's Unix could be rewritten as BSD and GNU/Linux, and Microsoft Officecould be cloned as OpenOffice. Even patents which could spoil such borrowingsaren't as internationally universal and not remotely as long-lasting as copyright.In other words, free softwaredevelopment could be an "appropriation art" without copyrightinfringement.
The same isn't possible for most artists, however. It makes little sense forthem to restrict their uses to material whose copyright has either expired orthat has been released under sufficiently free terms. The Coca Cola logo can'tbe cloned as a copylefted "FreeCola" logo, and it would be pointless for theYes Men to pose as an "OpenWTO" or for0100101110101101.org to have run as "GNUke" instead of Nike. If even harmlesscollaging, sampling and quoting becomes risky because of media industrial Internetcopyright 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 evenitsabolition 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 botherto care. 
It is not hard to bash the Creative Commons for being an organization run withlittle understanding of the arts, and not even a good understanding of open sourceand free software philosophy. On the other hand, artists themselves have failedto voice themselves what they want. The exceptions are few and rather marginal:the anti-copyrightphilosophies and politics of Lautréamont, Woody Guthrie (who, accordingto Dmytri Kleiner, released his songbook with thelicense that "anybody caught singin' it without our permission, will be mightygood friends of ours, cause we don't give a dern. Publish it. Write it. Singit. Swing to it. Yodel it"), Lettrists, Situationists, Neoists, Plunderphonicsmusicians and some Internet artists including the French artlibre.org collectivewhose "Free Art License" predatesthe Creative Commons by two years. 
A team of lawyers whose work consists of creating, as Bosworth puts it, "lowcost legal templates," the Creative Commons organization has simply listenedto all kinds of artists and activists, trying to do justice to diverse and sometimescontradictory needs and expectations,with licenses "designed to give artists choice" (Mako Hill) rather than prioritizingfree use and reuse of information. In contrast, Free Software and Open Sourceare, like any human and civil rights effort, universalist at their core, withprinciples that are neithernegotiable, nor may be culturally relativized.
If someone is to blame for the fact that artists, political activists and academicsfrom the humanities have largely failed to recognize those essentials, then itis Eric S. Raymond, founder of the "OpenSource Initative" (http://www.opensource.org),the group that coined the term "Open Source" in 1998. The main advantage of theterm "Open Source" over "Free Software" is that it doesn't merely refer to computerprograms, but evokes broader culturalconnotations. For mostpeople with artistic backgrounds, GNU's "Free Software" sounded too confusinglysimilar to (close-source) "freeware" and "shareware." "OpenSource" sparked an all the richer imagination as Raymond didn't simply pitchit as an alternative to proprietary "intellectual property" regimes, but as a "Bazaar" modelof open, networked collaboration. Yet this is not at all what the Open SourceInitiative's own "Open SourceDefinition" says or is about. Derived from Debian's "Free SoftwareGuidelines," it simply lists criteria licenses have to meet in order to be consideredfree, respectively open source. The fact that a work is available under sucha 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 developedby rather closedgroups and committees of programmers in what Raymond calls a "Cathedral" methodology.Conversely, proprietary software companies such as Microsoft may develop theircode in distributed "Bazaar" style.Nevertheless, the homepage of http://www.opensource.org statesthat the "basic idea behind open source" is about how "softwareevolves," "at a speed that, if one is used to the slow pace of conventional softwaredevelopment, seems astonishing," thus producing "better software than the traditionalclosed model." Regardless which position one takes in the philosophical and ideologicaldispute between "Free Software" and "Open Source," the self-characterizationof Open Source as a development model mixes up cause and effect, being inconsistentwith what the Open Source Definition, on the same website, qualifies as OpenSource, i.e. software whose licenses fulfill itscriteria of openness.
Given how "Open Source" has been propagated as a model of networked collaborationinstead of user rights or free infrastructures, the gap between the lip-servicepaid to it in the arts and humanities and the factual use of free software andcopylefts comes to little surprise. "Cultural" free software conferences whoseorganizers and speakers run Windows or the Mac OS on their laptops continue tobe 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 andelectronic arts writing.
The problem is not so much that people do not use free operating systems, butthat software-political correctness anxiety prevents a more honest critical discourse.A debate on "why free software doesn'twork for us" would be more productive for free software development than thecurrent hypocrisy. Recent discussions on why, for example, free software cultureinvolves disproportionally few women - even in comparison to proprietary softwaredevelopment - have at least begun totackle some of those issues.
Productive critique, after all, is needed. Eight years after thecoinage of "Open Source," Raymond's Hegelian claims of superior development methodologiessound increasingly hollow. Free software hasn't displaced proprietary softwareat all. Despite its success on servers and in embedded systems, it is unlikelyto 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 mailservers, 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 developercommunity. The closer the software is to the daily needs and work methods ofprogrammers andsystem administrators, the higher typically its quality.
Similar rules seem to apply to free information, respectively "OpenContent" development. The model works best for infrastructural, general, non-individualisticinformation resources, with Wikipedia and FreeDB (and lately MusicBrainz) asprime examples. Similarly, the cultural logic of sounds and images circulatingunder CC licenses is largely that of stock music, stock photography and clipart, regardlessthe fact that current CC licenses mostly fail to permit their "mashups," boilingdown to little more than "Web 2.0" lifestyle logos. Beyond software, infrastructuralinformation and publishing that waives reproduction rights, the value of freelicensing is somewhat doubtful. Experimental, radical art and activism that doesnot play nice with third-party copyrights and trademarks can't be legally releasedand used under whatever license anyway. Its work should rather - and explicitly- be released into the public domain with, quote jodi, "allwrongs reversed" and, quote Kleiner, "all rights detourned under the terms ofthe Woody Guthrie General License Agreement." For professional artists, thissimply means to acknowledge the reality of contemporary art economics: that artists,with the exception of a handful of stars, no longer live from producing materialgoods (for which copyright granted lifetime monopolies, or at least the illusionof continuous revenue streams), but like 17th century project entrepreneurs fromcommissioned projects whose material products have little or no market valueby 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.
1) BenjaminMako Hill, Towards a Standard of Freedom: Creative Commons and the Free SoftwareMovement, http://www.advogato.org/article/851.html
8) DmytriKleiner, The Creative Anti-Commons and the Poverty ofNetworks, http://info.interactivist.net/article.pl?sid=06/09/16/2053224
9) http://creativecommons.org/images/find.gif, http://creativecommons.org/license
10) JohnBerndt, Proletarian Posturing and the Strike that Never Ends, SMILEmagazine, Baltimore, 1988
11) tENTATIVELY,a cONVENIENCE, History Begins where Life Ends, self-published pamphlet,Baltimore 1993
13) This scenarioisn't too far-fetched considering Lessig's recent advocacy of the non-open fileformat Adobe/Macromedia's Flash which he calls a "crucial tool of basic digitaleducation in a free culture" (quotationtranslated 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 informationinto technology whose availability is at the mercy of a single vendor, they restrainfair use.
15) It isnot coincidental, for example, that the term "Open Content" and the website http://www.opencontent.org waslaunched in 1998 only few months after the first propagation of "Open Source," untilits founder David Wiley sacked the initiative in 2004 in order to - ironicallyor not - become a director of CreativeCommons.