CC Community Blogs

This page aggregates blogs by people or organizations who write about CC topics, including people affiliated with CC or jurisdiction projects. To be included, a blog must minimally be under a CC license and contain all highly relevant posts, or be able to provide a feed of all highly relevant posts (e.g. a category feed). Contact if you know of a blog that should be included here. Opinions are those of individual bloggers.

How different would the net be without Firefox?

Mike Linksvayer, April 06, 2014 09:23 PM   License: CC0 1.0 Universal

David Flanagan, latest making claim I’ve read many times:

Without Mozilla, there would have been no Firefox, and the internet would be very different today.

Mitchell Baker in only a few more words included a combined mechanism and outcome:

We moved the desktop and browsing environments to a much more open place, with far more options and control available to individuals.

Baker further explained Mozilla aims to make an analogous difference in the computing environment of today and the future:

Today we live in a different online era. This era combines desktop, mobile devices, cloud services, big data and a social layer. It is feature-rich, highly centralized, and focused on a few giant organizations that exert control over almost all aspects of the experience. Today’s computing environment is deeply in need of an open, exciting alternative that shows what the Open Web brings to this setting — something built on parts including Firefox OS, WebGL, asm.js, and the many other innovations being developed at Mozilla. It is comparable to the desktop computing environment we set out to revolutionize when we started Mozilla.

Mozilla needs to bring a similar scope of change to the new computing era. Once again, Mozilla needs to break down the walled gardens of online life and bring openness and opportunity to all. Once again, we have the chance to build products and communities in a way that no one else will.

(Baker’s post announced Brendan Eich as CEO, Flanagan lays out some information following Eich’s resignation. That crisis presumably changed nothing about evaluations of Mozilla’s previous impact, nor its plans for analogous future impact. The crisis just provided an opportunity for many to repeat such evaluations and plans. This post is my idiosyncratic exploitation of the opportunity.)

Those are important claims and plans, and I tend to strongly agree with them. My logic, in brief:

  • there’s a lot of scope for the net (and society at large) to be substantially more or less “open” than it is or might be due to relatively small knowledge policy and knowledge economy changes;
  • there’s a lot of scope for commons-based projects to push the knowledge economy (and largely as an effect, knowledge policy) in the direction of “open”;
  • due to network effects and economies of scale, huge commons-based projects are needed to realize this potential for pushing society in an “open” direction;
  • Mozilla is one of a small number of such huge commons-based projects, and its main products have and will be in positions with lots of leverage.

Independent of my logic (which of course I doubt and welcome criticism of) for agreeing with them, I think claims about Mozilla’s past and potential future impact are important enough to be criticized and refined rather than suffering the unremitting bludgeoning of obscurity or triviality.

How could one begin to evaluate how much and what sort of difference Mozilla, primarily through Firefox, has made? Some things to look at:

  • other free/open source software browser projects;
  • competition among proprietary browsers;
  • differences between Firefox and proprietary browsers in developing and implementing web standards;
  • all aspects of Mozilla performance vs. comparable (Mozilla is different in many respects, but surely amenable to many tools of organizational evaluation and comparison) organizations;
  • 2nd order effects of a superior (for a period, and competitive otherwise) free/open source browser, e.g., viability of free desktop (though never achieving significant market share, must be responsible for huge increases in consumer surplus due through constraint on proprietary pricing and behavior) and inspiration for other open source projects, demonstration of feasibility of commons-based competition in mass market.

It’s possible that such questions are inadequate for characterizing the impact of Mozilla, but surely they would help inform such characterization. If those are the wrong questions, or the wrong sort of questions, what are the right ones? Has anyone, in any field, taken evaluation of Mozilla’s differential impact beyond the Baker quote above? I’d love to read about how the net would have been different without Firefox, and how we might expect the success or failure of new Mozilla initiatives to produce different worlds.

These kinds of questions are also important (or at a minimum, interesting to me) for other commons-based initiatives, e.g., Wikimedia and Creative Commons.

A plan for a plan to accelerate clarity on “NonCommercial” by 100%

Mike Linksvayer, April 01, 2014 08:39 PM   License: CC0 1.0 Universal

After 11+ years, 4 major license suite versions, focused research, and movement education campaigns, Creative Commons achieved a quantum increase in the clarity of the definition of NonCommercial as used in some of (CC-BY-ND does not) its semicommons licenses:

not primarily intended for or directed towards commercial advantage or private monetary compensation.

In the next 11+ years, Creative Commons can improve this performance by precisely 100% — remove two more words from the definition. Nobody knows which words yet: discovery will take years of versioning, research, outreach, collaboration with NonCommercial definition reusers, and perhaps a party. The result, even if not intended to change the substantive meaning of the definition, will bring an unprecedented level of clarity to NonCommercial. We can only look forward to but not yet imagine the next one.

Hazard Records 015

Mike Linksvayer, March 25, 2014 07:15 AM   License: CC0 1.0 Universal

Hazard Records 002 cover with no copyright notice

Barcelona-based avant/improv/appropriation/noise CD-R and now netlabel Hazard Records celebrates its 15th anniversary today (March 25). All of their releases are dedicated to the public domain (recent ones using CC0; for the trivia-oriented, note their pre-CC “no rights reserved” in the cover image above). I’ve been a dedicated listener since not long after they started uploading to the Internet Archive in 2004, 76 albums as of now, with one more each of the next four weeks coming in celebration of the anniversary. My top 4 easy listening recommendations…

Anton Ignorant – S/S Magick For Abused Speakers [HR017] (meditative noise)

Breuss Arrizabalaga Quintet – Nfamoudou-Boudougou [HR038] (free jazz)

Joan Bagés i Rubí – Miscel.lània Sonora [HR053] (avant miscellany)

XMARX – Unhazardous Songs [HR060] (rock ‘n’ ‘ropriation)

Unfortunately many Hazard Records albums on the Internet Archive don’t have embedded artist/album/title metadata in the ogg/mp3/flac downloads; this being one of the main motivations behind my wishlist for that site. But nobody downloads anymore and the Internet Archive has a passable (for now, if you’re not totally expecting uninterrupted play across pages that newer sites support) embedded player, used in this post and on the site. Listen, enjoy, and share…links.

Bonus recommendation:

Musica Veneno – Whole Lotta Love Story [HR015] (intra-label appropriation)

Happy 15 Hazardous years! I’m looking forward to the next 80 records.

Surgical Strike – A Glitch And A Result

Rob Myers, March 24, 2014 10:10 PM   License: Attribution-ShareAlike 4.0 International


Rotation Fail

F-117 Nighthawk Model by TheVNPrinter (CC-BY-SA).

Infografik: Creative Commons in Zahlen

Markus Beckedahl, March 24, 2014 03:54 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Für D64 haben die DesignerInnen Sara Lucena und Nico Roicke einige Zahlen zu Creative Commons gesammelt und in eine riesige Infografik (JPG / PDF) gepackt. Sie kommen dabei grob auf 400 Millionen CC-lizenzierte Inhalte.

Klarerweise sind nicht für alle Bereiche aktuelle oder ganz genau Zahlen verfügbar, zur groben Orientierung taugen sie aber allemal. Vor allem aber wollen wir mit der Grafik auch zeigen, wo es im Netz die meisten Creative-Commons-Inhalte gibt und so zur Verbreitung von Creative Commons beitragen.

Und das ist die Infografik:


Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Empathy for the Gooseberry

Mike Linksvayer, March 24, 2014 03:09 AM   License: CC0 1.0 Universal

You’ve almost certainly seen at least snippets of the Blender Foundation’s four short animated films Elephants Dream (2006), Big Buck Bunny (2008), Sintel (2010) and Tears of Steel (2012; my blog post riffing on a memorable scene) — because they’re high quality and freely licensed for any use (CC-BY) they’re frequently used in demos.

Now Blender Foundation (who primarily make the free software Blender 3D modeling, animation, video editing, and more program; they use open movie projects to push the software forward) is working on a feature-length animated film, Gooseberry, which would mark a new milestone (Sita Sings the Blues will surely remain the best feature length free film of any sort, but was made with non-free software and is 2D).

They have an ambitious crowdfunding goal of €500,000 to support the project. I pledged and hope you’ll join me. A few interesting bits from the campaign FAQ:

What quality can we expect? Like, compared to Sintel, or a Pixar movie?

As magic number for budget calculations, I use the “Months of work per minute of film”. This is including writing, coders, art, production.

For Big Buck Bunny that was 6. For Sintel it was 10. For Gooseberry we daringly want to go to 15 even. For a Disney or Pixar film, this number is easily 300 to 500. Go figure! But our film will be better than Sintel or BBB for sure.

What is this “exploitation window”

Even though everything will be free/open source, we will reserve for the final movie (renders, final edit, grade) a short period of exploitation. That ‘window’ is 3 months, starting at the official premiere (our own, or on film festival). Film distributors can pay us for the exclusive rights to show the film in theaters during that period. Or TV stations, or Netflix! After that, all gates go open and we release it as CC-BY for everyone.

I can’t complain about the non-free “exploitation window”, as there’s zero infrastructure for marketing and distributing free-as-in-freedom films; in the short term, the window might get the film to a wider audience and thus build its cultural relevance and value as a free film after the window. The existence of free and culturally relevant films will be a huge help to any eventual such marketing and distribution infrastructure, so best of luck to the Gooseberry team in all respects.

There’s another short made with Blender in progress called Wires For Empathy:

A 3D animated short film based in free/libre software, Tube is also a new experiment in distributed collaboration. It plays on the ancient Gilgamesh poem, in a variant of the hero’s progress that becomes the animation’s own frames.

The trailer looks great:

Sympathy for the Strawberry is not one of my favorite Sonic Youth tracks, but the above titles made me think of it. I would heavily contribute to a crowdfunded free-as-in-freedom album by a reunited band sans Thurston Moore, call it Free Sonic Youth. Which part (free or Thurston-free) is most unlikely?

Stealth Ring

Rob Myers, March 22, 2014 07:33 AM   License: Attribution-ShareAlike 4.0 International

An old Surgical Strike program reworked for the new system:

Ring 1 Ring 2


codeword blim
  roll 0 36 0
  manouver 0 36 0

// Main orders

load "F-117.stl"
camouflage "MacOS.png"
//roll 0 180 0
manouver 1 0 0
blim 10

Hack Circus

Rob Myers, March 20, 2014 11:02 PM   License: Attribution-ShareAlike 4.0 International

Hack Circus

Run, don’t walk, to get a subscription to the new quarterly art/technology/weirdness journal Hack Circus. It’s like the Fortean Times as published by Make Magazine, or Mondo 2000 by Strange Attractor Journal. Issue 2 is just out and contains articles on the nature of reality, choreography as code & vice versa, and personality mimicking bots on Twitter amongst other things. I can’t recommend it highly enough.

Proof Of Existence 2

Rob Myers, March 20, 2014 01:09 AM   License: Attribution-ShareAlike 4.0 International


I have placed the hash of “God” into the Bitcoin Blockchain:

SHA256: ebc3e2e6448f94af7b58e57658336a44d3ff44eafadb54e4c4cd71ba7e607594

Address: 163NUfEg61eJeNiQ9SyN6EDT1ynkzDL2ar

This proves that God exists.

Urteil des LG Köln zu Creative Commons im öffentlich-rechtlichen Rundfunk

Markus Beckedahl, March 19, 2014 09:04 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Das Creative-Commons-Lizenzmodul “NonCommercial” (NC) ist sowohl das umstrittenste als auch das meistgenutzte der drei optionalen Lizenzmodule von Creative Commons (siehe Abbildung 1 mit Daten aus einer von Creative Common selbst beauftragten Nutzungsstudie). Umstritten ist das Modul vor allem deshalb, weil es mit anders lizenzierten Inhalten (z.B. aus der Wikipedia) inkompatibel ist und weil es viele Nutzungsszenarien gibt, in denen die Abgrenzung zwischen kommerzieller und nicht-kommerzieller Nutzung schwierig ist (als Einstieg zum Thema NC-Lizenzen empfiehlt sich ein Blick in die Broschüre von und Wikimedia „Folgen, Risiken und Nebenwirkungen der Bedingung ‚nicht-kommerziell – NC’“; für Details siehe auch einen Aufsatz von Jakob Kapeller und mir zum Thema).

Nutzung des NC-Lizenzbausteins im Vergleich mit anderen Lizenzierungsformen (n=1484; Aktive Lizenzanwender, die bereits eigene Werke lizenziert haben; Mehrfachnennungen möglich; aus: Dobusch/Kapeller 2012)

Abbildung 1: Nutzung des NC-Lizenzbausteins im Vergleich mit anderen Lizenzierungsformen (n=1484; aktive Lizenzanwender, die bereits eigene Werke lizenziert haben; Mehrfachnennungen möglich; aus: Dobusch/Kapeller 2012)

Ein Beispiel für einen Grenzfall ist die Nutzung von NC-lizenzierten Inhalten durch öffentliche Rundfunkanstalten und seit kurzem gibt es auch in Deutschland ein Urteil zu diesem Thema. Das LG Köln, das gerade erst mit einer Entscheidung zur Kennzeichnung von Pixelio-Bildern für viel Aufregung gesorgt hat, behandelt in seinem Urteil 28 O 232/13 (PDF) das öffentlich-rechtliche Deutschlandradio als einen kommerziellen Nutzer. Konkret ging es um die Nutzung eines Fotos, das von dem Fotografen unter einer NC-Lizenz auf Flickr veröffentlicht und auf der Webseite des Deutschlandradios unter Verweis auf den Rechteinhaber und die CC-Lizenz verwendet worden war. Leider geht aus dem Urteil nicht hervor, um welche Lizenz es sich genau gehandelt hat; im Text ist von “Creative Commons Legal Code AttributionNonCommercial 2.0″ die Rede, was auf die internationale (“generic”) Version hindeutet.

In seiner Begründung setzt sich das LG Köln allerdings gar nicht mit der Definition der NC-Klausel in der Lizenz auseinander. Stattdessen heißt es dort lapidar:

Der Begriff der kommerziellen Nutzung ist in der Lizenzvereinbarung selbst nicht definiert.

Das trifft meiner Meinung nach nicht zu. Im englischen Lizenztext steht unter Punkt 4b:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

In der deutschen Version heißt es dort:

Sie dürfen die in Ziffer 3 gewährten Nutzungsrechte in keiner Weise verwenden, die hauptsächlich auf einen geschäftlichen Vorteil oder eine vertraglich geschuldete geldwerte Vergütung abzielt oder darauf gerichtet ist.

In beiden Fällen handelt es sich zwar um allgemeine, aber dennoch Definitionen von kommerzieller Nutzung. Warum sich das LG Köln mit dieser Definition in keinster Weise auseinandersetzt, ist mir schleierhaft. Stattdessen ergeht sich das Urteil sofort in ausführlicher Gesetzesexegese und stützt sich im Wesentlichen auf “die Zweckübertragungslehre nach § 31 Abs. 5 UrhG sowie die allgemeinen Auslegungsregeln der §§ 133, 157 BGB” (S. 8).

Konkret argumentiert das LG Köln, dass “im Zweifel keine weitergehenden Rechte eingeräumt werden als dies der Zweck des Nutzungsvertrages erfordert” (S. 9) sowie dass im Zweifelsfall die Rechte beim Urheber verbleiben (S. 10). Der zentrale Absatz ist leider sprachlich offensichtlich fehlerhaft und definiert “nicht kommerzielle Nutzung” einfach in “private Nutzung” um:

Ausgehend im Sinne der Lizenzbedingungen diesen Grundsätzen ist hier von einer kommerziellen Nutzung der Beklagten auszugehen. Nach dem objektiven Erklärungswert ist unter der Bezeichnung “nicht kommerzielle Nutzung” eine rein private Nutzung zu verstehen.

Zu so einem Schluss kann man meiner Meinung nach nur kommen, wenn man die Definition von kommerzieller Nutzung im Lizenztext einfach ignoriert. Schon eher überzeugend ist hingegen das Argument, das den konkreten Nutzungskontext im Fall des Deutschlandradios mit jenem von privaten Radioanstalten vergleicht:

Für einen privaten Radiosender ist es üblich, für die Nutzung eines Lichtbildwerkes eine entsprechende Vergütung zu zahlen. Für eine Differenzierung der Nutzungseinräumung zwischen privaten und öffentlichen Radiosendern besteht kein Anlass. (S. 11)

So heißt es beispielsweise auch in den Creative-Commons-FAQ zum NC-Lizenzmodul, dass es nicht so sehr auf die Art des Nutzers sondern vielmehr auf die konkrete Nutzungssituation ankommt:

Please note that CC’s definition does not turn on the type of user: if you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term. Whether a use is commercial will depend on the specifics of the situation and the intentions of the user.

Fazit: Wäre die Nutzung durch eine Produktionsfirma im Auftrag des öffentlich-rechtlichen Rundfunks erfolgt, der Sachverhalt wäre klar gewesen: die Firma hätte das Werk in einer Weise verwendet, die hauptsächlich auf einen geschäftlichen Vorteil gerichtet ist. Da die Nutzung aber unmittelbar durch den öffentlich-rechtlichen Rundfunk erfolgt ist und der qua Gesetz keine Gewinnerzielungsabsicht verfolgt, ist es nicht so eindeutig, ob hier tatsächlich eine kommerzielle Nutzung im Sinne der Lizenzbedingungen vorliegt. Denn laut der Definition im Lizenztext kann die Gewinnerzielungsabsicht in der konkreten Nutzungshandlung einen Unterschied machen. Leider hat sich das LG Köln aber in seinem Urteil nicht mit der konkreten Definition auseinandergesetzt, weshalb das letzte Wort in dieser Angelegenheit wohl auch mit dem vorliegenden Urteil noch nicht gesprochen ist.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Free Bassel & Open Borders Days

Mike Linksvayer, March 16, 2014 01:04 AM   License: CC0 1.0 Universal

March 15, another year of Bassel Khartibil‘s life as a political prisoner in Syria. Some friends put together a cookbook (pdf) with meals they’d like to share with him when he is free.

Macabre image for a macabre situation.

March 16 is Open Borders Day. Bassel apparently returned to Syria voluntarily. There are millions who have little chance of leaving dictatorships, war zones, and grinding poverty — not because they are imprisoned by the local regime, but because we allow the international apartheid system to stand.

Recent Media Coverage

Rob Myers, March 15, 2014 07:19 PM   License: Attribution-ShareAlike 4.0 International


Hyperallergic featured Tom Burtonwood’s remixes of Urinal in their interview with them. I do need to work out how BY-SA applies here.


Rhizome featured Facecoin in an article on digital currencies and art. They also mentioned “_MON3Y AS AN 3RRROR | MON3Y.US” and “Computers and Capital“, which are the last two shows I’ve reviewed for Furtherfield.


And the Tate gallery featured Exploring Tate Art Open Data 2 in a survey of artistic responses to their collection dataset release.

Open Educational Resources Expand Access to Higher Education in the United States

Michael Carroll, March 14, 2014 04:01 PM   License: Attribution 2.5 Generic

Leaders in the Obama Administration, in state governments, and in corporate America have acknowledged the urgency of increasing access to higher education in the United States - particularly through community colleges.  These leaders also recognize the importance of improving completion rates and educational outcomes for those who enroll.

 As we come to the close of Open Education Week, it is now time for these leaders to focus attention, energy and resources on the most immediate opportunity to make progress toward these goals while also freeing up billions of dollars that can be redirected toward this progress.  Make textbooks available to students for free or at very low marginal cost.

The Open Textbook Opportunity - Tidewater Community College Case Study

Sound too good to be true?  It's not, and the forward-looking folks at Tidewater Community College are leading the way.  Students at Tidewater can now save 30% of the cost of a two-year Associate' Degree of Science in Business Administration because all of the textbooks are published under a Creative Commons Attribution license which gives anyone - students and the school - the rights to freely make copies and adapt these works as long as proper attribution to the author(s) is maintained.

According to Linda Williams at Tidewater, open textbooks have not just been a cost savings but also have improved the quality of the educational experience and have opened up improvements in students' quality of life.

In one case a student - a veteran - was routinely unable to afford his textbooks until weeks into the semester.  When he enrolled in a Pre-Calculus class for which he could freely download the openly-licensed textbook, it was the first time he'd ever started a class with the required materials in hand.

In another case, a single mother who enrolled in the Business Administration degree program was able to use her savings on textbooks to buy braces for her daughter - an expense she could not have managed without these cost savings.

Why Open Textbooks Now?

Of all of the challenges facing access to education and improved educational outcomes, the problems of textbook affordability, usability, and adaptability are the key barriers that can be readily overcome. The Tidewater case should not be an exception - let's make it the norm.  Educational materials are moving from print to digital, but currently they are still expensive, subject to extensive restrictive copyright licensing terms, and reside behind a password-protected paywall.  To adapt the famous lines from President Reagan, leaders, use smart policies that promote open educational resources to tear down this wall!

 By shifting to high quality OER, educational institutions at both the K-12 and tertiary levels can redirect billions of dollars into improved access and outcomes that currently flow into a textbook production system that is highly inefficient, a system that transfers significant wealth out of the educational sector and into the pockets of shareholders in a handful of publishing firms without corresponding benefits.

To be clear, there are historical reasons for this that predate the Internet.  The Internet is the game-changer, and while these firms currently are part of the problem, they also have the opportunity to become part of the solution.

How? By embracing the production of Open Educational Resources.  These aren't free to produce or update, but production, adaptation, and quality control can all be done far more efficiently and at significantly lower cost than is currently the case. Just ask the folks at OpenStax College who are publishing top-notch textbooks that are free to download and are available in print for about $30.

Who Will Offer the Next Degree Program Built on Open Educational Resources?

With the pool of high quality, openly licensed textbooks and other educational resources growing every day, what traditional brick-and-mortar educational institution will be next to follow Tidewater's lead and start using OER to promise students from the beginning that the cost of their textbooks will be free, at very low cost, or covered by the cost of tuition?

More Surgical Strike

Rob Myers, March 11, 2014 06:38 AM   License: Attribution-ShareAlike 4.0 International


I’ve fixed more of the outstanding issues in Surgical Strike. And I’ve make an Emacs mode for editing .strike files and executing them.


I’ve also documented the language and taken this opportunity to change a feature of the language that I was never happy with, although I haven’t updated the code examples to reflect this yet.

Gov[ernance]Lab impressions

Mike Linksvayer, March 08, 2014 07:22 AM   License: CC0 1.0 Universal

First, two excerpts of my previous posts to explain my rationale for this one. 10 months ago:

I wonder the extent to which reform of any institution, dominant or otherwise, away from capture and enclosure, toward the benefit and participation of all its constituents, might be characterized as commoning?

Whatever the scope of commoning, we don’t know how to do it very well. How to provision and govern resources, even knowledge, without exclusivity and control, can boggle the mind. I suspect there is tremendous room to increase the freedom and equality of all humans through learning-by-doing (and researching) more activities in a commons-orientated way. One might say our lack of knowledge about the commons is a tragedy.


Other than envious destruction of power (the relevant definition and causes of which being tenuous, making effective action much harder) and gradual construction of alternatives, how can one be a democrat? I suspect more accurate information and more randomness are important — I’ll sometimes express this very specifically as enthusiasm for futarchy and sortition — but I’m also interested in whatever small increases in accurate information and randomness might be feasible, at every scale and granularity — global governance to small organizations, event probabilities to empirically validated practices.

I read about the Governance Lab @ NYU (GovLab) in a forward of a press release:

Combining empirical research with real-world experiments, the Research Network will study what happens when governments and institutions open themselves to diverse participation, pursue collaborative problem-solving, and seek input and expertise from a range of people.

That sounded interesting, perhaps not deceivingly — as I browsed the site, open tabs accumulated. Notes on some of those follow.

GovLab’s hypothesis:

When institutions open themselves to diverse participation and collaborative problem solving, they become more effective and the decisions they make are more legitimate.

I like this coupling of effectiveness and legitimacy. Another way of saying politics isn’t about policy is that governance isn’t about effectiveness, but about legitimizing power. I used to scoff at the concept of legitimacy, and my mind still boggles at arrangements passing as “legitimate” that enable mass murder, torture, and incarceration. But our arrangements are incredibly path dependent and hard to improve; now I try to charitably consider legitimacy a very useful shorthand for arrangements that have some widely understood and accepted level of effectiveness. Somewhat less charitably: at least they’ve survived, and one can do a lot worse than copying survivors. Arrangements based on open and diverse participation and collaborative problem solving are hard to legitimate: not only do they undermine what legitimacy is often really about, it is hard to see how they can work in theory or practice, relative to hierarchical command and control. Explicitly tackling effectiveness and legitimacy separately and together might be more useful than assuming one implies the other, or ignoring one of them. Refutation of the hypothesis would also be useful: many people could refocus on increasing the effectiveness and legitimacy of hierarchical, closed systems.

If We Only Knew:

What are the essential questions that if answered could help accelerate the transformation of how we solve public problems and provide for public goods?

The list of questions isn’t that impressive, but not bad either. The idea that such a list should be articulated is great. Every project ought maintain such a list of essential questions pertinent to the project’s ends!

Proposal 13 for ICANN: Provide an Adjudication Function by Establishing “Citizen” Juries (emphasis in original):

As one means to enhance accountability – through greater engagement with the global public during decision-making and through increased oversight of ICANN officials after the fact – ICANN could pilot the use of randomly assigned small public groups of individuals to whom staff and volunteer officials would be required to report over a given time period (i.e. “citizen” juries). The Panel proposes citizen juries rather than a court system, namely because these juries are lightweight, highly democratic and require limited bureaucracy. It is not to the exclusion of other proposals for adjudicatory mechanisms.

Anyone interested in random selection and juries has to be at least a little interesting, and on the right track. Or so I’ve thought since hearing about the idea of science courts and whatever my first encounter with sortition advocacy was (forgotten, but see most recent), both long ago.

Quote in a quote:

“The largest factor in predicting group intelligence was the equality of conversational turn-taking.”

What does that say about:

  • Mailing lists and similar fora used by projects and organizations, often dominated by loudmouths (to say nothing of meetings dominated by high-status talkers);
  • Mass media, including social media dominated by power law winners?

Surely it isn’t pretty for the intelligence of relevant groups. But perhaps impetus to actually implement measures often discussed when a forum gets out of control (e.g., volume or flamewars) such as automated throttling, among many other things. On the bright side, there could be lots of low hanging fruit. On the dim side, I’m surely making extrapolations (second bullet especially) unsupported by research I haven’t read!

Coordinating the Commons: Diversity & Dynamics in Open Collaborations, excerpt from a dissertation:

Learning from Wikipedia’s successes and failures can help researchers and designers understand how to support open collaborations in other domains — such as Free/Libre Open Source Software, Citizen Science, and Citizen Journalism. [...] To inquire further, I have designed a new editor peer support space, the Wikipedia Teahouse, based on the findings from my empirical studies. The Teahouse is a volunteer-driven project that provides a welcoming and engaging environment in which new editors can learn how to be productive members of the Wikipedia community, with the goal of increasing the number and diversity of newcomers who go on to make substantial contributions to Wikipedia.

Interesting for a few reasons:

  • I like the title, cf. commons coordination (though I was primarily thinking of inter-project/movement coordination);
  • OpenHatchy;
  • I like the further inquiry’s usefulness for research and the researched community;
  • Improving the effectiveness of mass collaboration is important, including for its policy effects.

Back to the press release:

Support for the Network from will be used to build technology platforms to solve problems more openly and to run agile, real-world, empirical experiments with institutional partners such as governments and NGOs to discover what can enhance collaboration and decision-making in the public interest.

I hope those technology platforms will be open to audit and improvement by the public, i.e., free/open source software. GovLab’s site being under an open license (CC-BY-SA) could be a small positive indicator (perhaps not rising to the level of an essential question for anyone, but I do wonder how release and use of “content” or “data” under an open license correlates with release and use of open source software, if there’s causality in either direction, and if there could be interventions that would usefully reinforce any such).

I’m glad that NGOs are a target. Seems it ought be easier to adopt and spread governance innovation among NGOs (and businesses) than among governments, if only because there’s more turnover. But I’m not impressed. I imagine this could be due, among other things, to my ignorance: perhaps over a reasonable time period non-state governance has improved more rapidly than state governance, or to non-state governance being even less about effectiveness and more about power than is state governance, or to governance being really unimportant for survival, thus a random walk.

Something related I’ll never get around to blogging separately: the 2 year old New Ambiguity of ‘Open Government’ (summary), concerning the danger of allowing term to denote a government that publishes data, even merely politically insensitive data around service provision, rather than politically sensitive transparency and ability to demand accountability. I agree about the danger. The authors recommend maintaining distinctions between accountability, service provision, and adaptability of data. I find these distinctions aren’t often made explicit, and perhaps they shouldn’t be: it’d be a pain. But on the activist side, I think most really are pushing for politically sensitive transparency (and some focused on data about service provision might fairly argue such is often deeply political); certainly none want open data to be a means of openwashing. For one data point, I recommend the Oakland chapter of Beyond Transparency. Finally, Stop Secret Contracts seems like a new campaign entirely oriented toward politically sensitive transparency and accountability rather than data release. I hope they get beyond petitions, but I signed.

Surgical Strike Update

Rob Myers, March 07, 2014 06:50 AM   License: Attribution-ShareAlike 4.0 International

I’ve updated the 2008 remake of my 1996 artistic programming language “Surgical Strike” to compile on modern versions of GNU/Linux.

It makes things like this from stealth bombers and old computer company logos:


codeword blim
    manouver 0 18 0
    roll 0 18 0
// Main orders

load "f-117.dxf"
camouflage "MacOS.png"
roll 0 90 0
manouver 0.1 0 0
blim 22

“Pass the mic!” – Sampler mit CC-lizenzierter Musik

Markus Beckedahl, March 05, 2014 04:44 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Die alternative Verwertungsgesellschaft Cultural Commons Collecting Societ (C3S) und die Musikplattform Jamendo haben zusammen einen Sampler rausgebracht, der nur Creative Commons lizenzierte Musik enthält. “Pass the mic!” enthält 18 Lieder aus diversen Genres und zeigt, welche musikalische Vielfalt und Qualität CC-lizenzierte und GEMA-freie Musik zu bieten hat. Bei Jamendo kann man alle Songs einzeln oder als Album herunterladen.

Hier kann man reinhören:

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

flattr this!

Communia responds to EU consultation on new copyright rules

Communia Association, March 05, 2014 04:33 PM   License: CC0 1.0 Universal

Communia has responded to Public Consultation on the review of the EU copyright rules that closes today. While we wait for the Commission to publish all the responses on its own website (given that we are hearing about more 10.000 responses so far this will likely be quite a challenge) we have uploaded our response here (pdf).

In our response we call for a radical overhaul of the European Copyright rules. In line with our 2011 policy recommendations we argue for a shortening of the copyright term, the introduction of a registration system, more harmonization of the limitations and exceptions (with the final goal of a single European copyright code), and a strengthening of user rights via a robust set of limitations and exceptions that ensure access to our shared knowledge and culture online. In addition to broadened or new exceptions for cultural heritage institutions, educators, researchers, people with disabilities and private individuals we also call for the introduction of more flexibility by adding an open norm to the list of existing exceptions.

We are very pleased to see that there has been a massive response from citizens and civil society organisations to this consultation. While the content of these responses is only known to the Commission at this point, the amount of responses clearly proves that the Commission’s strategy to limit the discussion about copyright policy to an intra-industry discussion about licenses is no longer sustainable. Europe needs a new set of copyright rules that embrace the opportunities created by the digital age, and this discussion needs to include citizens and civil society as important stakeholders. As far as Communia is concerned this discussion needs to focus on maximising the social and economic benefits of the internet instead of facilitating specific internet based business models.

A Creative Commons rights infringement case study (involving my work)

Ivan Chew, March 04, 2014 07:03 PM   License: Attribution 3.0 Singapore

Last week, friends alerted me that one of my online artwork was used by a Facebook page owner without crediting me.

The artwork was licensed under a Creative Commons ATTRIBUTION license. All the user had to do was credit me and he would be free to modify, repurchase, even sell the image. I did not specify any specific way for attribution. As long as the user made a reasonable attempt, it would have been fine.
"Angry Civet Cat" (#143: Project 365 Sketches)

But the page owner didn't credit me. My name in the image had also been cropped out.

I wrote the FB page owner a private FB message. In it, I identified myself as the image creator and I requested (not demanded) that he remove the image. I explained that my image was created as a subtle protest against the commercial harvesting/ exploitation of civet cats half-digested coffee beans. His Facebook page was, ironically, promoting the sale of "Kopi Luwak" coffee beans.

There was no response after 2 days, so I left a public comment on the (modified) image he posted in his page album. I gave him the benefit of doubt that he might have missed my mail. My comment only asked if he had received my message. I did not want to embarrass him by publicly saying he had (inadvertently or otherwise) infringed on my rights.

A day later the comment was deleted.

case study - CC rights infringement #1 case study - CC rights infringement #2 case study - CC rights infringement #3

Now, CC licenses cannot be revoked. If the fella had credited me in a reasonable way, all would have been dandy.
Once you apply a CC license to your material, anyone who receives it may rely on that license for as long as the material is protected by copyright and similar rights, even if you later stop distributing it.

Under CC (or CC-BY, in my case), even if I was uncomfortable with my image used that way, he still had every right to reuse it. I respected that right. That said, it was also within my rights to ask that I am not credited with the image if I felt strongly about it.

The CC-FAQ covers this issue quite clearly:
What can I do if I offer my material under a Creative Commons license and I do not like the way someone uses it?
As long as users abide by license terms and conditions, licensors cannot control how the material is used. However, CC licenses do provide several mechanisms that allow licensors to choose not to be associated with their material or to uses of their material with which they disagree.

First, all CC licenses prohibit using the attribution requirement to suggest that the licensor endorses or supports a particular use. Second, licensors may waive the attribution requirement, choosing not to be identified as the licensor, if they wish. Third, if the licensor does not like how the material has been modified or used, CC licenses require that the licensee remove the attribution information upon request. (In 3.0 and earlier, this is only a requirement for adaptations and collections; in 4.0, this also applies to the unmodified work.) Finally, anyone modifying licensed material must indicate that the original has been modified. This ensures that changes made to the original material--whether or not the licensor approves of them--are not attributed back to the licensor.


Had he bothered to discuss with me, I would have explained CC to him, and what were his rights were as well.

But his intentions was obvious by that time. I reported to Facebook with necessary details. Facebook took down the image fairly quickly.

What happens if I offer my material under a Creative Commons license and someone misuses them?
A CC license terminates automatically when its conditions are violated. For example, if a reuser of CC-licensed material does not provide the attribution required when sharing the work, then the user no longer has the right to continue using the material and may be liable for copyright infringement. The license is terminated for the user who violated the license. However, all other users still have a valid license, so long as they are in compliance.
Under the 4.0 licenses, a licensee automatically gets these rights back if she fixes the violation within 30 days of discovering it.
If you apply a Creative Commons license and a user violates the license conditions, you may opt to contact the person directly to ask them to rectify the situation or consult a lawyer to act on your behalf. Creative Commons is not a law firm and cannot represent you or give you legal advice, but there are lawyers who have identified themselves as interested in representing people in CC-related matters.

The version 4.0 CC license goes a step further to say:
Modifications and adaptations must be indicatedIn the 4.0 license suite, licensees are required to indicate if they made modifications to the licensed material. This obligation applies whether or not the modifications produced adapted material. As with all other attribution and marking requirements, this may be done in a manner reasonable to the means, medium, and context. For example, "This section is an excerpt of the original." For trivial modifications, such as correcting spelling errors, it may be reasonable to omit the notice... ...Source:

If you really, really want to protect your work, or the intent behind your work, against such IP violations, the surest way is NOT to share anything online. Or share it anywhere, for that matter. But that's impractical and also give rise to a false sense of security. For instance, if you licensed your work in a legitimate contractual agreement (e.g. artwork in a poster for public display), how can you possible ensure that others will not take handphone pictures of your work and make unauthorised copies?

The key issue here is really about discovery (or lack of) IP rights violation and subsequent enforcement. E.g. costs of pursuing legal action. But such an issue existed long before CC came into the scene. You may not adopt CC for your work, and you would still face this issue when someone uses your work without your permission.

For me, the great thing about CC is that there is greater clarity of rights and obligations. With CC, and of course the prep work done by the folks who maintain the CC FAQ and licenses, there's less room for ambiguous interpretations compared with the typical Copyright legalese. I was very clear on the steps to take, and confident that I had the CC terms to refer to (Note: CC is not an alternative to Copyright; CC is built on the foundations of Copyright).

Will this incident stop me from licensing my art and music under CC? No, not at all. I'm reminded of these lines of poetry from the poet Rumi: "Do not burn a blanket because of a flea..."

Will I be uncomfortable if the said party reinstates the image, with credits to me? Ultimately, no. Anyone who is that obtuse -- as to use a image that is AGAINST the business he/ she is in -- is either a genius or someone who does not warrant my time or attention. I believe there are enough people who have benefited from CC licensed works and are using them correctly. Besides, once I've made a decision to license a work under CC, I can and will only look ahead.

What if the said party re-posts the modified image, this time with attribution? Doing it out of spite, perhaps.

I've no problem with that. Because CC (version 4.0) allows the "violation" to be rectified within 30 days. Still, my rights do not change. I can accept the attribution, or ask for the attribution to be removed. If the user does not comply with that, it is a violation of terms.

Knowing that such conditions are attached to CC-licensed works gives me that additional assurance on what my rights are, if I find that my intent (conveyed through the work) has been misrepresented.

How I would pursue the matter is, of course, a separate decision.

Increasingly, in a vastly connected world, there are also social norms to contend with. Enforcement is not always about the law. It will be obvious to people that someone's goodwill has been taken advantage of.

As they say, (online) reputation is everything.

Unlock federated MediaGoblin hosting revolution game

Mike Linksvayer, March 02, 2014 01:00 AM   License: CC0 1.0 Universal

About 16 months after raising $42k to feed the programmers (my post about that campaign), the MediaGoblin team is asking again, with promised features dependent on the total amount raised.

I’m pretty excited about three features. First, at $35k:

Federation: Connect and share with friends and family even if you’re on different MediaGoblin sites! We’ll be adding federation support via the Pump API.

Mostly because this would be a boost to the so far disappointing and fractured federated social web.


[UNLOCK] Premium hosting reward! If we hit 60k, we’ll add a new reward option: premium hosting!

Doesn’t federation make hosting superfluous? Everyone should run their own server, right? No, those are extremely delusional or elitist claims. I don’t want to run my own server, nor do 7 billion others. Federation (preferably in conjunction with free software, data and identifier portability) enables interoperation and competition among individual-, community-, and commercially-run services. At this stage there seem to be very significant economies of scale (inclusive of marketing!) in running servers. Hopefully someone (the developers would be natural) will realize the necessity of mass hosting of federated services for federation to win.


[statement] After watching the new MediaGoblin video, i want to play their video game.

[response] I’ve joked about putting a goblin video game as a 500k feature unlock

Here I just wanted to point out how much of MediaGoblin lead developer Christopher Webber’s personality and vision is in the campaign video, assets, and overall scheme. That vision goes pretty far beyond federated media hosting. Free games and art are part of it. But a MediaGoblin game would be a great marketing tie-in solely for the goal of promoting MediaGoblin. I hope this happens; $500k this campaign would be great, but under other circumstances if not.

Shaver: Copyright and Inequality

Mike Linksvayer, February 27, 2014 11:34 PM   License: CC0 1.0 Universal

copyright inequality iconI really enjoyed Copyright and Inequality, a new paper by Lea Shaver forthcoming in the Washington University Law Review — enough to attempt a summary on first read, and to read a second time, aloud, in hope that some people who would never read a 52 page paper might still hear its message.

The paper is highly readable, a large part of it (“A Case Study in Book Hunger”, numbered pages 9-22, about books, languages, and the socio-economics of South Africa) of general interest, barely mentioning copyright at all — though if you start by reading that section, hopefully you’ll then read the rest of the paper to find out how copyright is implicated. May the remainder of this post be a complement.

Inequality Promotion

To put it crudely, Copyright and Inequality mostly concerns copyright’s role in keeping the poor poor, rather than its role in concentrating wealth. The latter seems even less studied than the former, but the former seems more important, unless you consider rule by plutocracy the most urgent issue in the world.

In the category of keeping the poor poor, the magnitude of copyright’s negative impact on neglected language (cf. neglected disease) populations was new to me — the requirement of permission to translate contributes to almost no books being available in these languages, for pleasure, or for education, the latter creating a bottleneck for further life opportunities (n.b. “everyone should learn English” is a multi-generation strategy only successfully carried out by wealthy countries so far).

The cost issue is obvious, but can hardly be repeated enough. Shaver provides the example of books (when available at all, almost always in English) costing 2x as much in South Africa as in the US or UK, while income is far lower, especially for the poor (about half of the population lives on less than US$50 a month).

Many countries are far poorer than South Africa, and large populations dependent on neglected languages are common. Many wealthy countries, the U.S. in particular, have large populations of poor and neglected language speakers. Copyright is helping keep the poor poor everywhere. (Expensive textbooks are appropriately a priority target in the U.S., but every good that carries a copyright monopoly tax contributes in some combination to material poverty and cultural exclusion.)

Shaver makes a very strong case for including distributive justice in copyright discourse, along the way summarizing well known problems with the dominant romantic authorship + incentive narrative which has sidelined equality. She doesn’t push for any single solution, but the most interesting discussion is of the possibility of a carve out for translation to neglected languages, along the lines of such for braille and audio versions for use by blind users. Shaver says that copyright term extension should be opposed (additionally) for distributive justice concerns, but term reduction is “politically impossible” due to treaty obligation. (In what other fields is scholarly discourse on substantially alternative and obviously superior arrangements — the current regime based on “more fallacy than fact” — so readily discarded?)


Copyright and Inequality mentions free/open/commons production or distribution briefly in a few places:

  • Another scholar mentioned commons-based peer production in the context of patents.
  • The “more radical” (than providing access at public libraries) solution of “allocating public textbook funds to the production of Open Educational Resources.” (Actually a rapidly growing practice.)
  • “Open business models” meaning very broadly cultural production not dependent on restricting copying.
  • “Limited commons”, e.g., copyright might be relaxed for a neglected language, but translations of new works in that language to non-neglected languages would be fully restricted.

I’m happy that these are included at all, but commons advocates need to make full versions central. A carve out for translation to neglected languages would be better than none, but if it is achieved, will take many years of negotiation, and be riddled with requirements that will limit effectiveness (as Shaver notes is the case with carve outs for disability), and obviously would leave all non-linguistic copyright inequality mechanisms, and the resources of interest groups that support enclosure, fully intact. Commons-based funding mandates and peer production can happen much faster, and are anything but politically impossible, and can make a huge impact, far beyond a “patch”.

This potential huge impact might hold especially for neglected languages, which essentially are not being served at all by proprietary production. For everyone, as I’ve said many times, product competition from the commons both reduces the resources available to enclosure industries to lobby for protectionism and re-imagines the range of desirable policy, in sum shifting what is politically possible.

Buttressed with recognition of copyright inequality, in particular its negative impact on neglected language populations, what might various commons advocates, projects, and movements do? Some off-the-cuff notes:

  • I’ve long admired Wikimedia’s commitment to host its projects (Wikipedia and friends) for any language community capable of maintaining a project, even a very small one, and its enunciation of the importance of this commitment and of Wikimedia’s freedom (as a non-profit) to pursue such a commitment. The result so far includes Wikipedia in 287 languages and much more, with even more in incubation, formal and informal movement communities around the world, a program to make Wikipedia access free of mobile data charges in the developing world, and probably much more I’m not aware of. Should the findings of Copyright and Inequality lead the various parts of the Wikimedia movement to multiply their efforts to support the growth of and access to free knowledge in neglected languages and increase estimates of the Wikimedia movement’s economic values accordingly? The paper’s findings are probably already well known by the staunchest language advocates around Wikimedia, but perhaps they should be taken even more seriously than they already are. I am ignorant of the human side of Wikimedia outreach to neglected language communities, but surely there is now a substantial body of experience which could be leveraged in making further investments and partnerships. On the technical side, perhaps the migration of lots of knowledge into the truly multilingual Wikidata project could enable more projects in more languages to be truly useful, even for very small language communities?
  • The importance of first language availability of texts, especially educational materials, implies that software user interface availability in the user’s first language is probably pretty important too. What would it take to increase popular free/open source software application language support from dozens (Firefox claims over 80, LibreOffice over 30) to hundreds, even thousands of languages, thereby including most neglected languages? More collaboration across program translation efforts? More centralization? Collaboration with governments, educational systems, funders? A higher bar for user interface changes requiring translation updates? Fewer programs?
  • Fund the creation new free knowledge (inclusive of entertainment!) works in neglected languages, e.g., with small grants and prizes, and introduction of collaborative production, e.g., book sprints?
  • Market, sell, distribute, push for adoption of free knowledge works among neglected language populations — this is what publishers do (given a wealthy enough population anyway), and what must be done for the commons. Making works available online, with no promotion, only solves problems for an elite, and doesn’t offer proprietary publishers any competition, where they choose to compete.
  • Could recognition of the value of neglected languages provide an impetus for a new and large effort toward free software machine translation? Little progress has been made thus far, perhaps in part because some proprietary services such as Google Translate are gratis, and work for most non-neglected languages. Could redoubled effort to support neglected languages in Wikimedia projects (Wikisource translations might be especially relevant) and free/open source software projects help provide needed parallel corpora?
  • Awareness of the plight of neglected language populations could buttress arguments for open funding mandates, particularly if it could be demonstrated that some resulting materials were actually translated and used by said populations — neglected language translation and marketing might even be included in some such mandates, or funders and projects working with neglected language populations could specifically target translation and distribution of the “best” of the output of open funding mandates.
  • Awareness of neglected languages could buttress arguments for voluntary release of works under free/open licenses or into the public domain. (A handful of readers might note that translation-only licenses have been proposed, and a “Developing Nations” license briefly offered. The latter got almost no use before it was retired, perhaps in part because it seemed both confusing and paternalistic — and I doubt these very limited commons offer much, including in public license form. I can’t stress enough that sales/marketing/distribution/adoption are very tough and very necessary, and commons projects have largely failed at them to date. Given this, it is insane to cut off entire segments of potential collaborators, e.g., free knowledge projects and diaspora communities.)
  • Increasing commons movements’ self-awareness of their ability to help neglected language populations could buttress these movements’ self-awareness of their own political potency, leading them to act unashamedly as an interest group and to boldly stake a claim for the commons as the central paradigm for information/innovation policy, thereby further increasing their political potency, and ability to help neglected language populations. (Recursion intentional!)


Further excerpts from Copyright and Inequality:

Overall, copyright law works quite well for copyright scholars at leading universities.

Funniest sentence in the paper, presumably unintentional. (One small bit of progress would be for “copyright scholars” to re-imagine themselves as “commons scholars”; cf. copyright experts→commons experts.)

Its protections give us control over our own writings, which we can choose to invoke or to waive, as we believe best suits our own interests. Its incentives help to stimulate the production of an ever-greater variety of informative and entertaining works for our professional and personal development. Its limitations on access and use of copyrighted works only rarely pose significant problems for us. From this perspective, it is easy to miss the more profound problems posed for the 99% of the world that does not enjoy the same privileged position of access.

From this privileged perspective, creative production resembles a constantly expanding buffet of choice laid before us, among which we may select the most appealing options until we are full. Perhaps some of these offerings are being produced in languages we do not speak. No matter, more than enough choices remain. In our affluence of resources and opportunities, we might even choose to acquire fluency in a second language to further expand our choices. Copyright protection promises to raise the quality, the diversity, at the very least the sheer number of offerings placed upon the table. How could this be a bad thing? But can your peripheral vision stretch farther still? If so, you might see, standing back behind you, a hungry crowd. They are the poor. They are a majority of the world. They too admire the buffet. But they realize it is not laid for them. For some of us, the proliferation of new works is a bounty, opening up new worlds of consumer choice, new horizons of creativity to explore. For most of the world’s population, however, the expanding universe of new cultural works is yet another site of social privilege from which they are effectively excluded.

Well and powerfully said regarding the unseen and neglected, but I submit further that our forward vision is profoundly myopic. Relative to the (perhaps two billion?) people who are both poor and only read a neglected language, wealthy people with English fluency are incredibly privileged, and have ready access to an astounding and ever-growing surfeit of culturally relevant educational and entertainment materials. Those employed by wealthy universities have yet more ready access. Just before the humorous sentence:

Located in major research universities, we also enjoy supremely convenient access to the best-funded libraries in the world. As a group, we do not fail to complain when we notice that copyright law impedes our own ability to access, create, and distribute cultural works. Fortunately, our legal expertise and professional experience positions us well to both recognize the legal roots of our problems, and to suggest solutions to our legislatures and courts.

But however well positioned relative to neglected language populations or the general public of wealthy countries, these complaints and suggestions always face a tremendous uphill battle, at best. The enclosure industries are much better positioned than their scholars.

We love whatever culture we grow up in, but I doubt the one driven by the maximization of rents available from cultural products (cf.), at the expense of freedom and equality, is anywhere near the best of possible worlds, even for those with access to those products. I think an analogy to the internet is appropriate: had a small number of closed electronic services continued to dominate, and a decentralized network never developed, we would now think of the AOL, CompuServe, and Prodigy of 2014 as amazing — and they would be! The much better world of the internet would be beyond the imagination of most. Culturally, that AOLternative universe is the one we live in. But we can catch some glimpses of the internet universe, e.g., in Wikipedia, in PLOS, in memories of Napster.

Perhaps appropriately, only acting in the interests of poor and neglected language populations, against copyright inequality, will we be able to leave the AOL culture scenario and into the internet culture universe.

Closing quote from Copyright and Inequality:

An often-quoted statement by John Maynard Keynes posits that “The political problem of mankind is to combine three things: economic efficiency, social justice, and individual liberty.” The perspectives of economic efficiency and individual liberty have profoundly informed our discussion of copyright law. Yet the perspective of social justice has been comparatively absent. Reckoning with the ways in which social inequality impacts the market for copyrighted work begins to supply this missing perspective. In the end, the inequality insight also leads us back to economic efficiency and individual liberty. For a system of creative production and exchange that excludes most of the world from participation is also not economically efficient. Nor does it effectively promote individual liberty for all. To promote all three of these values, copyright policy and scholarship must account for the realities of social inequality.

Read the entire paper, and share!

Glitcherature In Emacs 2

Rob Myers, February 27, 2014 07:35 AM   License: Attribution-ShareAlike 4.0 International

glitcherature-mode for Emacs has been updated to add new functions for applying multiple commands to words, sentences and paragraphs, randomly or in order. There are also new commands to sort characters, to copy structure from one text another and to render a falling rain effect.

You can get the code and instructions here:

Here’s an extreme example of what used to be Sherlock Holmes.

“T oSH anYo HeLMNa ms heINSH iSEYsHEwo, MaNIhaV  eSE-LDOmhEA Rd HImM eNti ONHe rUNDE. rI tWA StNortha
EeElt AYeSeSh  EecliPsE SAn dpr EdOMInaTE SThew holE OF hERSex ons Adt atT HPFRT
ICuNYLMot, iONAK iNt ol,oVEF or IreneADLERALl, emOt iaBLybNlAT He DONEDa HEW AL
aRIYwerE Abho,RRenttOHi  S ColDPreCi sEbuT adMi rv inGmacH NCet Min tewor
SHtaK, eIt the mostper fECt re aSonInGA Nd OBSER LfiNaF, INseHA tiThO NHl dEa
SSeENbuTas Al OVE rhEw, oUl dhaV ep laCe dhIMSEA NDAanEA lTp oSwiREAd, ENa
vERSp, Ok eOftheSoftER PAssiONS saVeWi tHaGib EN Gth Esv eErf rHEYMe. es mom
IREBlEthI NGS , forTHeObSEr VErE xC elL ENTfo rd RAwiS, UCh ntiLsIoo mIn nohiSti
VNSAndacTION sBUtfORThetraInEDrEAS on ERToadmittR oD uCIArUiST nsT ITgfA cOwDE,
liC ATEa NdfinE  LyAD jUst ED t eMpEr aME ntWA StoIntSGr ET dARacsin IV eIT
orRWhiCHMightTh.Rowad ouBTUp onAl  L HIsMe NTal rESUl SwouidI nT bSE noRtDI: sT
NSt iUmEntO  R acRAck i  No NEOfhIsO WnH IGhpoWe RLeNsE, AN DyE lTnoreEm Be tO
NEU RbM ngthA Na STR ongemOtIoNin an AtuREsuC hA ShisofDtbIh, eSA waSquus TI OnW
oeaNtOHI MaNdthaTW o Manwa. stHelate IrenEAdler yMy UaroUagendde rif teA

No the internet is not a ‘value tree’. If you must compare it to nature, a forest would be much more adequate

Communia Association, February 25, 2014 08:49 AM   License: CC0 1.0 Universal

You may have heard that the EU is currently reviewing copyright in order to ensure that it ‘stays fit for purpose in this new digital context’. While the public consultation on this topic is still running, EU officials have started to give some insights on how they see the digital environment that needs to be served by new copyright rules. In recent weeks officials at the European Commission’s Internal Market and Services Directorate General (which is in charge of copyright policy) have been passing around this diagram of what they call the ‘Internet Ecosystem value tree’:

Internet Ecosystem value tree

The ‘Internet Ecosystem value tree’ according to the European Commission.

Apparently this Internet Ecosystem value tree is rather important in how the Commission sees the relationship between copyright and the digital environment. This is expressed in the concerns raised about the ecosystem’s ability to sustain the value tree. Commission officials are pointing out ‘that the roots need to be fed for the tree to keep blossoming’ and that this needs to happen via a ‘transmission belt of Euros’ (which seems to refer to the € Licenses arrow in the diagram above).

A transmission belt of Euros

Now anyone is entitled to their own opinion and views of the world, but it is alarming to see that the very people who are in charge of formulating the rules that will shape our use of the digital environment for years to come are basing their ideas on a rather simplistic model of the internet, that looks at the internet as if it was yet another push medium in the the line of newspapers, radio, CDs or television.

The Internet Ecosystem value tree implies that the primary purpose of the internet–like that of all distribution channels that came before it–is to channel content from producers (the Authors/Artists/Audiovisual and Record Producers/Newspapers and Books Publishers/Broadcasters/Other Creative Industries in the schema above) to a separate group of people called Consumers. In exchange for this the Consumers will pay Distributors and Internet Platforms for their services, which is then augmented with advertising income. Distributors and Internet Platforms use parts of their income to pay for the content.

What the Commission implies here is that if this transmission belt of Euros does not work, then the entire internet ecosystem will die off and as a result any public policy aimed at protecting the digital environment must ensure that content producers are paid.

The internet is not a television

It should be clear to pretty much anyone who has used the internet that this description does not adequately describe how we interact with content online. The internet is not a simple content delivery mechanism (such as television) that provides a linear sales channel from producers of content to consumers. While this is one (admittedly important) function of the internet, it is not the only one.

The internet as we know it today fulfills many different functions, most of which do not even appear in the Commission’s diagram. These include such elementary things like email and messaging, online discussion groups and communities as well as projects and platforms such as Wikipedia and GitHub, and also online offerings by public educational and cultural institutions. The internet enables new forms of research (such as text and data mining) and has generally helped to increase collaboration between researchers and spread the results of research.

None of these and other uses of the internet rely on content produced by the creative industries in the same fundamental way. However they do play an important part in explaining why consumers (and organisations) pay for internet access and they must be factored in when trying to develop policies that will shape how we can use the internet.

Look at the forest instead of the tree(s)

Trying to understand the internet by looking at the European Commission’s Internet Ecosystem value tree is like trying to understand a forest by looking at one specific tree. Even worse, as any scholar of biology will be able to tell you, intervening on behalf of one specific type of tree without taking into account the effects on the rest of the forest will almost certainly damage the forest as a whole. Unfortunately it appears that this is exactly the approach that the Commission is intent to pursue: promoting the interests of one particular tree (content producers) even if this comes at the cost of killing or damaging the rest of the forest.

So what is at risk here? There are a number of functions and uses of the internet that are not well-served by the dogma of 20th century-style copyright policy which consists of more and longer protection, limited user rights and ever more enforcement.

Projects like Wikipedia, uses such as text and data mining, online access to cultural heritage and educational resources, and transformative use of the internet do not follow the same logic as the traditional content industry value chains. Here limited user rights and long terms of protection become problematic and increased enforcement translates into chilling effects.

At the same time all of these types of uses are exactly what makes the internet special and drives its potential to accelerate innovation and to democratize access to knowledge, tools and culture. The internet is the first mass medium that is simultaneously enabling market driven uses, uses that are driven by public policy objectives (such as education or access to culture), and uses driven by people’s desire to create, collaborate and contribute to the commons.

Any policy that aims to regulate the internet (and that includes copyright policy) needs to take this diversity into account and provide room to support these other crucial uses. This will inevitably lead to situations where there are conflicting interests, but these cannot be solved by simply focusing on one particular use of the internet as the Commission is proposing with its Internet Ecosystem value tree.

No more one size fits all

We need a departure from the one-size-fits-all approach of traditional copyright towards a system that is more flexible and better adapted to the needs of all stakeholders. This includes professional content creators and distributors who need adequate levels of protection for their works, educators and cultural heritage institutions who need more freedoms to do their work in the digital realm, and also  end users and researchers who should not have to fear that making use of the internet will turn them into copyright infringers.

A first step towards ensuring that copyright positively enables all of these outcomes would be to increase the scope of user rights (through updating the existing list of copyright exceptions) and to make copyright more flexible (through the introduction of a fair-use type exception). In the long run this will mean simplifying the way copyright works, and ensuring that copyright protection is only granted where it is necessary (or wanted by the creators).

Looking after the interests of all trees in the Internet Ecosystem is also in the interest of the particular value tree that the Commission seems to care so much about. If the copyright rules continue to hinder those online activities that are not primarily motivated by a transmissions belt of euros, copyright will lose legitimacy and be detrimental primarily to those who rely on the protections offered by copyright law.

Proof of Existence

Rob Myers, February 21, 2014 12:06 AM   License: Attribution-ShareAlike 4.0 International

Genome Bitcoin Address

I have placed the hash of my genome into the Bitcoin Blockchain:



This proves my existence.

Exploring Tate Art Open Data 0

Rob Myers, February 20, 2014 02:51 AM   License: Attribution-ShareAlike 4.0 International

Why visualise the Tate’s collection dataset?

The Tate is the UK’s largest art institution. The free and open release of Tate’s collection data shows just how far open data has come in the last decade, and makes a major resource available for study. This resource allows us to follow two lines of investigation.

The first is into the history of art, using the Tate’s collection as a model of art in general, particularly of British art. The Tate’s collection data describes the form, content, attribution and dates of a sample of art from the past several hundred years. This is a history of art, and as long as we place it in its historical context it can be a useful one.

The second is institutional critique, to analyse the Tate’s collection and contrast it with other collections and with other models of the history of art (verbal, data-based or otherwise). Rather than allowing or controlling for the historical context of the data this makes recovering and examining that context the focus.

It’s possible to succeed or fail at each, and neither requires taking the claims of Museums to represent history or of data to represent reality at face value or in a vacuum. Data visualisation and statistical analysis are ways of dealing with datasets that would take a human reader many years to examine. They are forms of rhetoric, but they are also useful tools.

With suitable modesty of aims and suitable reflection on the historical and political contexts which have given rise to our tools and materials, let us begin…

My farewell to Creative Commons Arab world…

Donatella Della Ratta, February 19, 2014 06:58 PM   License: Attribution-ShareAlike 3.0 United States

Thank you, Donatella Della Ratta

Jessica Coates, February 18th, 2014

Donatella Della Ratta
Donatella Della Ratta / Joi Ito / CC BY

Creative Commons extends its deepest gratitude to Donatella Della Ratta. For almost six years, she’s been working as a tireless advocate for Creative Commons and open culture in the Arab world, increasing the knowledge and adoption of CC, conducting outreach to creative communities, and connecting activists throughout the region. Dona has done all of this with grace and tenacity in the midst of an oftentimes unpredictable and sometimes unstable political and social environment in much of the Arab world. We thank you, Dona.

Even though Dona is leaving her position as regional coordinator for the Arab world, Creative Commons will continue to support this incredibly important region. We are in the process of bringing on two new part-time regional coordinators, as we’ve done with other geographic areas. Below is a note from Donatella.

On my way back from Amman, where the fourth Arab Bloggers meeting was held this year, I was thinking that it all started here. Back to early 2008, I was lucky enough to breathe an atmosphere of excitement and change that pervaded the Arab region, and encouraged the Arab youth to gather and discuss ideas, projects, new challenges. Technology played a key role in these gatherings: at the time, open communities such as Linux, Wikipedia, Mozilla, and the like, were being formed and getting together. We started the Creative Commons Arab world community during that wave of change, connecting with the other Arab communities which were using technology to create content together, promote social change, defend freedom of choice – and of expression.

We launched the first archive of CC-licensed broadcast footage with Al Jazeera, at a time when the lack of foreign journalists on the ground in Gaza during the Israeli attack had made information a very precious and scarce resource. Since 2008, many things happened in the Arab region. The Creative Commons Arab community has grown exponentially, and many countries have joined: together with Jordan and Egypt, where we had already official affiliates prior to 2008, informal communities started to gather in Lebanon, Syria, Qatar, UAE, Palestine, Tunisia, Algeria, Morocco, Iraq, Oman, and Mauritania. The latest addition has been Yemen, where few months ago the first training workshop on CC and open licensing was held in Sana`a.

During these years, we have held CC Salons everywhere in the region, from Doha to Casablanca; we have hosted CC Iftars in a number of Arab capitals, from Damascus to Amman. CC Arab communities have gathered in regional meetings four times (2009 Doha; 2010 Doha; 2011 Tunis: 2012 Cairo). We have hosted CC training sessions, panels and hands-on workshops in many regional, tech and community related events. In 2011, we started the first Pan Arab peer-produced and CC-licensed music project, “It will be wonderful”, which is still traveling around the world and being remixed. We produced the first collaborative, open-licensed comics fanzine between Egyptian and Moroccan artists. And many other exciting projects are in the pipeline: books, videos, music, and training toolkits, in Arabic and free to share.

Meanwhile, the Arab uprisings have happened, and this was probably the biggest change that the region witnessed in decades. Today the Arab world lives in difficult conditions: after the first wave of excitement for the toppling of many authoritarian regimes in the region, the civil movement for change has now to face tough challenges. Activists are being jailed and tortured, and creativity and cooperation are being repressed in an atmosphere of dire restoration. One of the most prominent member of the CC Arab world community, Bassel Khartabil aka Safadi, has been imprisoned by the Syrian government for two years without charges, probably being guilty of having dreamt a more free and open society for himself and his peers. Yet, against all odds, the Creative Commons Arab world, together with many other youth-led movements and communities in the region, is still producing content, sharing and building on other people`s ideas, and working for a better, more open society.

After five years spent as Arab world regional coordinator, I am proud to have helped this community to come together, and humbled by the strength and energy of this youth. While I am leaving my official role at Creative Commons, I will always be involved with the amazing Arab community and work together to push forward new ideas and exciting projects, despite all the problems we have to face in the region. And we will be waiting for our friend Bassel Safadi to join us in new, upcoming challenges.

The Australian Law Reform Commission recommends fair use, Europe next?

Communia Association, February 18, 2014 05:07 PM   License: CC0 1.0 Universal

With the EU consultation on a review of the European Copyright rules still ongoing (the new extended deadline is the 5th of March) it is nice to see that some other countries are apparently making progress with their national copyright reform agendas. One of the most interesting bits of news is coming out of Australia.


The Australian Law Reform Commission has just published its report on Copyright and the Digital Economy. At the centerpiece of this report we find the recommendation to replace the existing system of purpose-based exceptions with a flexible fair use style exception. The proposal, on which the 1709 Blog has a very useful summary, combines a fair use clause with a number of illustrative purposes that aims at providing legal certainty for specific types of uses:

Under the proposed framework, determining whether a use is ‘fair’ requires the balancing of the same four factors as those that underpin the US fair use doctrine, ie:

  • the purpose and character of the use;
  • the nature of the copyright material;
  • the amount and substantiality of the part used; and
  • the effect of the use upon the potential market for, or value of, the copyright material.

A more extensive (non-exhaustive) list of illustrative purposes than appears in the US statute is also recommended for inclusion. It covers:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news;
  • professional advice;
  • quotation;
  • non-commercial private use;
  • incidental or technical use;
  • library or archive use;
  • education; and
  • access for people with disability.

In the context of the ongoing EU consultation it is especially interesting to see a set of recommendations that try to combine the advantages of a fair use approach (flexibility and adaptability to new technological developments) with the advantages of an approach that relies on exceptions for certain clearly defined types of use (legal certainty for users that fall into these categories).

A number of the already published responses to the EU copyright consultation are suggesting a similar approach for Europe. These include the response by Copyright4Creativity (to which Communia has contributed) but also the responses by Europeana and by a number of Dutch cultural heritage institutions.

While we are waiting for the next steps of the European copyright reform process, the report by the the Australian Law Reform Commission, which draws on the outcomes of a similar public consultation, shows that a fair use approach certainly has its merits.

Art of cc-community

Mike Linksvayer, February 10, 2014 01:13 AM   License: CC0 1.0 Universal

The reading group (curated by Nate Aune) I mentioned as having started with Coase’s Penguin is on to its first book: The Art of Community: Building the New Age of Participation, 2nd Edition (2012) by Jono Bacon. It happens this corresponds with another delayed book review, though only by 18 months in this case, and largely motivated by the book including an interview with me (reproduced below).

This is a large tome. You can download it as a 20 megabyte PDF with 574 pages (linked from the book website along with usual purchase locations). I see substantial portions of about 5 books therein:

  • Autobiography of Jono Bacon. Less of this book is latent in the tome than those below, but tales of Bacon’s life are interspersed, and his personality comes through strong (n.b. Bacon uses “tales” to denote stories told within a community, not “tall tales”; similarly “fables” to denote stories that explain a community, not myths).
  • Inside the Ubuntu/Canonical Ltd. community: how it works, its tales and fables.
  • Tools and practices for managing an open source software community, especially one led by a for-profit company (corresponding to Ubuntu/Canonical Ltd. above).
  • Reference/workbook for community managers and their managers. Also interspersed throughout, but especially the chapter on hiring a community manager.
  • Community management casebook, heavily leaning on interviews with open source software project managers, but also many other types of community leaders and managers.

If any one of these piques your interest, it’s worth downloading the PDF and clicking in the ToC or word-searching, as is your style. If multiple seem compelling (say your company wants to hire a community manager, or you want to be hired as a community manager by a company), then reading the whole thing carefully would be a good use of your time.

(Of course it shouldn’t be your only reading, not least because “community management” is fraught, maybe especially in service of a for profit, and there exist plenty of criticisms of the Ubuntu/Canonical Ltd. community. I even agree with some of those criticisms, but my top level “complaint” about Ubuntu/Canonical Ltd. is that they haven’t been as successful in the marketplace as I’d like, i.e., they haven’t supplanted Microsoft! ☻ Bacon and company continue to work on that from a community angle.)


The interview with me in the book (numbered pages 492-495), conducted late 2011. The “cc-community” in the title of this post refers to a mailing list not mentioned in the interview.

You have been at the CC for a long time now. How did the organization look when you joined?

I joined CC in April, 2003, a few months after the first CC licenses were released. We were in the basement of the Stanford Law School, as that’s where Lawrence Lessig was. Various people had been involved over the preceding year, but essentially there were three staff just before I joined. There was a very loose community initially, based on the notoriety of Lessig and other founders and some friendly coverage in the usual (for the time) geek outlets such as Slashdot — more a variety of well-wishers than a community.

What kind of community did you set out to grow?

The other person CC hired in April, 2003 was our first international coordinator, based in Berlin. One community that we set out to grow, initially via this position, was a network of legal scholars around the world, who could collectively figure out how CC licenses work with copyright law in various jurisdictions around the world. This is the main community that CC was and is intentional about growing. We also set out to grow connections with related communities, eg open access, open education, open source, and mostly deliberately stayed away from trying to create “CC” subcommunities within these movements, and instead play a supporting role.

There always has been a mostly latent “CC community” of people who aren’t tied to a CC affiliate institution, and may or may not be involved with other nearby movements, but for whatever reason see CC as one of their primary passions — which is fantastic of course. CC the organization hasn’t ever really set out to “organize” this largely latent community, mostly due to lack of bandwidth (admittedly this could seem short sighted) and it isn’t clear how this community ought be cultivated — it is a very diverse set of people. I and some others see mobilizing this community (I’m actually more comfortable thinking about it as a movement) in some form as one of the biggest opportunities CC has in its next decade.

What approaches did you use to grow your community?

Regarding the international community of legal scholars we intentionally created, we gave them interesting, challenging, but highly delimited work — “porting” the CC license suite to their respective jurisdictions. (A “port” is usually both a linguistic translation and legal “translation” to reference local laws, drafting style, etc, where appropriate to hopefully make the ported licenses more understandable to the legal community in a given jurisdiction, but achieve the same affects to the extent possible.) This element of work made it relatively easy to determine what kind of team (usually composed of people from one or more local institutions) could be part of the formal community — they had to bring certain legal expertise, interest, and capacity — and gave community members a strong sense of ownership and contribution.

In the past 8 years CC licenses have been ported to over 50 jurisdictions via this process and community. In a sense this is just another instance of work occurring in chunks amenable to work being done by lots of different people, but I think the subject matter and large size and duration of the chunks makes it fairly interesting. Although many of the affiliate projects have formed their own local communities that have given feedback on license drafts, the overall process is highly controlled by experts, and openness to attracting and up-leveling drive-by contributors not much of a factor. This arrangement has been shown to not be competitive for building an encyclopedia, nor for most software and cultural projects, but perhaps should be evaluated if one thinks their project requires long-term commitment from a community with narrow and rare expertise.

Among the community involved in license porting, there has always been desire to also do advocacy and outreach, and sometimes art projects and software development. This has occurred organically, but over the last year or so we’ve also formally recognized those activities as potential responsibilities of a CC affiliate. While producing interesting work, a community that only really needs a few lawyers in each country is self-limiting. The aforementioned activities need unlimited resources, including the involvement of many more lawyers, who are crucial in persuading institutions and governments to adopt CC tools as policy, for example. Probably over the next few years there will be many more institutions and people officially involved in the CC community, with impressive outreach and projects around the world as a result.

The CC philosophy, particularly a few years ago, was fairly alien to the normal culture of content licensing and distribution practised by large record labels and studios. How did you communicate this message to your community?

Building a commons is still completely alien to “big content”; not even relevant really. Giving up the ability to legally persecute fans and users is a bridge too far for those whose dominant interest is protecting and milking existing revenue streams for however many quarters their horizon is. If it takes destroying the Internet to do that, so be it. This has to change, but the change won’t come from big content adopting CC licenses wholesale (though of course we appreciate when a progressive element does so for a project, and I’d be happy to be wrong), but through policy change that removes their ability to persecute fans. Have we reached “peak copyright” yet?

Communicating this to the CC community is not a challenge — they already knew how poorly aligned the interest and practice of big content and society are, and for many people this was a motivating factor for getting involved in CC.

The challenge has been figuring out where the commons can make a big difference, given the indifference-to-hostility of big content. The answer has arrived at fairly organically, learning both from the broader community (e.g., FLOSS, Wikipedians, the Open Access movement) and from the CC affiliate community’s work on institutional and government policy. The summary is that CC’s sweet spots are community and mass collaboration projects, where legal freedoms are necessary for a project to scale, just like in FLOSS, and in publicly interested policy, where the policymaker might be a funder, and institution, or a government. In both of these cases, the appropriate CC license or public domain tool is a standard, well understood and recognized instrument that can be made the legal basis of a project, or slotted into a broader policy intended to benefit the public, instead of engaging in expensive debate and reinvention — and there’s a big community of experts eager to help, wherever one is in the world.

There is a passionate CC community out there. How did you build a community that takes the CC ethos and spreads it further and advocating it to others?

Sharing, giving credit where due, valuing the common good, using technology to encourage such, not persecuting people who do those very natural things — things that one might recognized as “the CC ethos” — all precede CC. They’re essentially human. CC created some practical tools that one can use to further those ends and a brand that denotes such an ethos at our particular juncture in history. People would’ve been spreading that ethos in the same contexts CC is now — one can see an explosion of experiments in open content licensing in the years just before CC launched. Hopefully overall CC has made those people more effective than they would’ve been without a fairly high profile and well resourced (but tiny in the scheme of things) license steward, i.e., CC.

We did make an attempt approximately 2005-2008 to provide a nexus for open movements to meet and collaborate, a subsidiary called iCommons (now a small independent charity) that ran a series of “iSummits”. These turned out to be mostly useful for bringing the CC community together, so our next global gathering, which did not occur until September, 2011, made no pretense of being anything other than a CC summit. There remains huge opportunity to at appropriate times work together with other communities and movements with an overlapping ethos — more of that is happening, but slowly, and not under an umbrella brand.

CC is a now well established organization and community. How do you keep your community passionate about the CC and Free Culture?

Regarding the CC affiliate community (copyright and other experts mentioned above), carefully and collaboratively. Some of the core work by that community is changing — we’re working on version 4.0 of the CC license suite now, which has the aim of being unambiguously global — porting as it has been done so far may end, or at least will be a special case. We have to move and diversity the work of this community, and it has to be even more vital and challenging work, e.g. CC adoption as policy, leveraging CC’s reputation in nearby policy debates impactful to the commons, CC as a subject of legal, economic, and other research, and interfacing with WIPO and other international institutions. We have to strive to make CC a truly international organization itself. What this means for governance, staffing, fundraising, the structure of relationships with affiliates and other organizations — we don’t know yet, and will probably always be evolving.

Regarding the broader community and potential movement, the flip answer is that we don’t have to do anything. The passion is there, and free culture, open access, open education, etc, provide endless good news and opportunity for all interested — and occasionally we get a gift in the form of a ridiculously incorrect attack on CC from a big content executive — that fires everyone up. However, there’s a lot that we do, the single most important one being serving as a great license steward, which includes everything from explaining and answering questions to advocacy to actually getting the licenses “right” so that they’re the best tools for growing the commons. If our explanations of the licenses are confusing, or we have licenses that don’t serve to build the commons, it puts a real damper on the ability of the community to advocate and spread CC, and their passion for doing so.

The 4.0 process is also going to be crucial for engaging the broader community, and be a determinant of how much passion and energy we see from them over the next decade. My highest aspiration would be for the 4.0 licenses to have received overwhelming input and buy-in from both the broadest set of “netizens” (if I may use a 1990s term) interested in the common good and policymakers, forming a standard for info- and innovation-policy and norms for a generation. Coming anywhere near that goal will require lots of community organizing!

CC is a funded by donations. What approaches have you used to gather these donations?

So far the vast majority of our funding has come from U.S.-based private foundations. Our main effort for community support (which I consider the most healthy form of funding, and should over time become the most important pillar) has consisted of an annual fall campaign, mostly conducted online — think a micro version of the Wikimedia fundraising campaigns that most readers should have seen. CC has a lot of learning and growth to do here. The main reason to cultivate the CC community is that doing will be instrumental for accomplishing our mission — but it is true that we hope that a portion of the community has the means and feels our work is important enough to donate each year.

If you enjoyed that, check out the other community case book interviews: Linus Torvalds, Linux; Mike Shinoda, Linkin Park; Mårten Mickos, MySQL and Eucalyptus; Tim O’Reilly, O’Reilly Media; Carolyn Mellor, X.commerce, PayPal, and eBay; Ilan Rabinovitch, Southern California Linux Expo; Richard Esguerra, Humble Indie Bundle; Mark Bussler, Classic Game Room; Mary Colvig, Mozilla; Dries Buytaert, Drupal and Acquia; and James Spafford, Media Molecule.

If you enjoyed the book, Bacon also runs community leadership conferences.

Sleepwalking past Freedom’s Commons, or how peer production could increase democracy, equality, freedom, and innovation, all of them!

Mike Linksvayer, February 09, 2014 08:17 PM   License: CC0 1.0 Universal


The most interesting parts of ‘s The Wealth of Networks concern how peer production facilitates liberal values. I’ll blog a review in the fullness of time.

In lieu of that which may never come, some motivated notes on Coase’s Penguin, or Linux and the Nature of the Firm (2002, 78 pages) and Freedom in the Commons: Towards a Political Economy of Information (2003, 32 pages; based on a 2002 lecture). A friend wanted to trial a book group with the former. Re-reading that led me to the latter, which I hadn’t read before. Reading them together, or even just the latter, might be a good alternative to reading The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006, 473 pages).

As might be expected from decade plus old internet research, some of the examples in the papers and book are a bit stale, but sadly their fundamental challenge remains largely unacknowledged, and only taken as a byproduct. I would love to be convinced otherwise. Is the challenge (or my extrapolation) wrong, unimportant, or being met satisfactorily?

Excerpts from Freedom in the Commons (emphasis added by me in all quotes that follow):

[Commons-based peer production] opens a range of new opportunities for pursuing core political values of liberal societies—democracy, individual freedom, and social justice. These values provide three vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because, however, they are often contradictory rather than complementary, the pursuit of each of these values places certain limits on how we conceive of and pursue the others, leading different liberal societies to respect them in different patterns.

An underlying efficient limit on how we can pursue any mix of arrangements to implement our commitments to democracy, autonomy, and equality, however, has been the pursuit of productivity and growth.

[Commons-based peer production] can move the boundaries of liberty along all three vectors of liberal political morality.

There is no benevolent historical force, however, that will inexorably lead the technological-economic moment to develop towards an open, diverse, liberal equilibrium. If the transformation occurs, it will lead to substantial redistribution of power and money from the twentieth-century, industrial producers of information, culture, and communications—like Hollywood, the recording industry, and the telecommunications giants—to a widely diffuse population around the globe. None of the industrial giants of yore are going to take this redistribution lying down. Technology will not overcome their resistance through some insurmountable progressive impulse. The reorganization of production, and the advances it can bring in democracy, autonomy, and social justice will emerge, if it emerges, only as a result of social and political action. To make it possible, it is crucial that we develop an understanding of what is at stake and what are the possible avenues for social and political action. But I have no illusions, and offer no reassurances, that any of this will in fact come to pass. I can only say that without an effort to focus our attention on what matters, the smoke and mirrors of flashy toys and more convenient shopping will be as enlightening as Aldous Huxley’s soma and feelies, and as socially constructive as his orgy porgy.

Let us think, then, of our being thrust into this moment as a challenge. We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will largely depend on policy choices that we will make over the next decade or two. To be able to understand these choices, to be able to make them well, we must understand that they are part of a social and political choice—a choice about how to be free, equal, and productive human beings under anew set of technological and economic conditions. As economic policy, letting yesterday’s winners dictate the terms of economic competition tomorrow is disastrous. As social policy, missing an opportunity to enrich democracy, freedom, and equality in our society, while maintaining or even enhancing our productivity, is unforgivable.

Although the claim that the Internet leads to some form or another of “decentralization” is not new, the fundamental role played in this transformation by the emergence of non-market, nonproprietary production and distribution is often over-looked, if not willfully ignored.

First, if the networked information economy is permitted to emerge from the institutional battle, it will enable an outward shift of the limits that productivity places on the political imagination. Second, a society committed to any positive combination of the three values needs to adopt robust policies to facilitate these modes of production,because facilitating these modes of production does not represent a choice between productivity and liberal values, but rather an opportunity actually to relax the efficient limit on the plausible set of political arrangements available given the constraints of productivity.

We are at a moment in our history at which the terms of freedom and justice are up for grabs. We have an opportunity to improve the way we govern ourselves—both as members of communities and as autonomous individuals. We have an opportunity to be more just at the very core of our economic system. The practical steps we must take to reshape the boundaries of the possible in political morality and to improve the pattern of liberal society will likely improve productivity and growth through greater innovation and creativity. Instead of seizing these opportunities, however, we are sleepwalking.

What arrangements favor reorganization towards commons-based peer production? From Coase’s Penguin:

This suggests that peer production will thrive where projects have three characteristics. First, they must be modular. That is, they must be divisible into components, or modules, each of which can be produced of the production of the others. This enables production to be incremental and asynchronous, pooling the efforts of different people, with different capabilities, who are available at different times. Second, the granularity of the modules is important and refers to the sizes of the project’s modules. For a peer production process to pool successfully a relatively large number of contributors, the modules should be predominately fine-grained, or small in size. This allows the project to capture contributions from large numbers of contributors whose motivation levels will not sustain anything more than small efforts toward the project. Novels, for example, at least those that look like our current conception of a novel, are likely to prove resistant to peer production. In addition, a project will likely be more efficient if it can accommodate variously sized contributions. Heterogeneous granularity will allow people with different levels of motivation to collaborate by making smaller- or larger-grained contributions, consistent with their levels of motivation. Third, and finally, a successful peer production enterprise must have low-cost integration, which includes both quality control over the modules and a mechanism for integrating the contributions into the finished product.

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance.  Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

There’s been some progress on institutional tools (i.e., policy arrangements writ large, the result of “political action” above) in the 11 or so years since (e.g., Open Access mandates), but not nearly enough to outweigh global ratcheting of intellectual freedom infringing regimes, despite the occasional success of rearguard actions against such ratcheting. Neither these rearguard actions, nor mainstream (nor reformist) discussion of “reform” put commons at the center of their concerns. The best we can expect from this sleepwalking is to muddle through, with policy protecting and promoting commons where such is coincidentally aligned with some industrial interest (often simplified to “Google” in the past several years, but that won’t last forever).

My extrapolation (again, tell me if facile or wrong): shifting production arrangements so as to favor commons-based peer production is as important as, complementary to, and almost necessary for positive policy change. Commons-based product competition simultaneously changes the facts on the ground, the range of policies imaginable, and potentially create a commons “industrial” interest group which is recognizably important to regulators and makes commons-based peer production favoring policy central to its demands — the likely Wikimedia response to the European Commission copyright consultation is a hopeful example.

There has been lots of progress on improving commons-based peer production (e.g., some trends), but also not nearly enough to keep up with proprietary innovation, particularly lacking and missing huge opportunities where proprietary incumbents real advantages sit — not production per se, but funding and distribution/marketing/cultural relevance making. Improving commons-based peer production, shifting the commanding heights (i.e., Hollywood premium video and massively expensive and captured pharma regulatory apparatus) to forms more amenable to commons-based peer production, and expanding the scope of commons-based peer production to include funding and relevance making are among the most potent political projects of our time.

Wake up. ^_^

Kurzinterview mit Pixelio-Chef Markus Hein: “Creative Commons ist derzeit keine Option”

Markus Beckedahl, February 07, 2014 07:42 AM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

pixelio-logoGerade weil das Hauptproblem bei der Entscheidung des Landesgerichts Köln rund um die Abmahnung eines Bildes trotz Urhebervermerks die Auslegung der Lizenzbestimmungen der Plattform waren (siehe auch Thomas Stadler dazu), stellt sich die Frage, warum eine Plattform für “lizenzfrei” lizenzierte Bilder nicht einfach auf den weitverbreiteten Standard Creative Commons setzt. Die großen internationalen Plattformen wie Flickr unterstützen schließlich Creative Commons auch als eine Option und die Rechtssicherheit ist bei einem etablierten Standard einfach größer. Ich habe diesbezüglich ein kurzes E-Mail-Interview mit Pixelio-Chef Markus Hein geführt.

Warum bietet Pixelio eigentlich keine Creative-Commons-Option?

Markus Hein: Pixelio ist mittlerweile über 10 Jahre alt und hat seit der Gründung eigene Lizenzbestimmungen. Meines Wissens nach gab es, zumindest im deutschsprachigen Raum, vor 10 Jahren noch keine CC-Lizenz oder wir haben damals nichts davon gewusst – daher stand dieser Punkt niemals zur Debatte.

Was spricht aus Ihrer Sicht dagegen, Creative Commons zu unterstützen? Schließlich hat sich Creative Commons inzwischen zum de-facto Standard für frei verwendbare Inhalte jenseits von Software entwickelt und wird auch von Plattformen wie Flickr oder 500px unterstützt.

Markus Hein: Wir können nicht so ganz einfach unserer Nutzungsbedingungen ändern. Wir haben mittlerweile über 500.000 Mitglieder, zig Millionen Bilderdownloads und wahrscheinlich hundertausende Bildverwendungen. Die letzte Änderung an unseren Nutzungsbedingungen fand 2007 statt und seitdem haben diese wunderbar funktioniert – es gab also bis dato keinen Grund etwas zu ändern.

Ob und inwieweit sich das nun durch das aktuelle Urteil ändert, wird derzeit durch unseren Anwalt geprüft. Aber bei der Vielzahl an Usern muss jeder Schritt diesbezüglich genau überlegt werden.

Aber warum nicht einfach zusätzlich Creative Commons als Option anbieten – so wie z.B. Flickr das optional anbietet. Der diesbezügliche Aufwand sollte sich in Grenzen halten?

Markus Hein: Derzeit ist die Einführung einer anderen bzw. weiteren Lizenz keine Option. Das Anbieten von Bildern mit unterschiedlichen Lizenzbestimmungen ist aus meiner derzeitigen Sicht keine sinnvolle Lösung.

Abgesehen von der Frage Creative Commons oder nicht – warum schreiben sie in der Unterzeile Ihres Dienstes von “lizenzfreien Fotos”, obwohl die Nutzer eben doch eine Lizenz befolgen müssen?

Markus Hein: In der Bilder- und Medienbranchen ist der Begriff lizenzfrei ein absolut gängiger und üblicher Begriff. Er ist eine, vielleicht etwas schlechte, Übersetzung des englischen royalty-free Begriffs – hat sich aber in den letzten 15-20 Jahren eingebürgert. Der Begriff bezeichnet Medien die nicht für jede Nutzung erneut lizenziert werden müssen (wie bei lizenzpflichtigen bzw. englisch rights-managed), sondern einmal lizenziert werden und dann beliebig oft eingesetzt werden können. Der Begriff mag in juristischen Kreisen, in denen jedes Wort auf die Waagschale gelegt wird, nicht korrekt erscheinen. Allerdings ist dies, wie schon gesagt, in der Bilder- und Medienbranchen die Bezeichnung für eine Lizenzgattung.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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White Paper zu Creative Commons im öffentlich-rechtlichen Rundfunk

Markus Beckedahl, January 29, 2014 11:46 AM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

cc-ard-miniDie Rechteprobleme rund um die Ausstrahlung des NDR-Interviews mit Edward Snowden haben wiedereinmal eine Reihe von Absurditäten rund um öffentlich-rechtlichen Rundfunk im Zeitalter des Internets vor Augen geführt. Zwar wurde das Interview von einer Produktionsfirma erstellt, die eine 100-prozentige Tochter des NDR ist, dennoch war zu Beginn weder die englische Originalfassung des Interviews in Deutschland noch die deutsch synchronisierte Fassung außerhalb Deutschlands via Internet verfügbar. Als jemand, der in Deutschland seinen Rundfunkbeitrag zahlt, konnte ich so am Sonntag Abend in Wien trotz Breitbandinternet weder das Video noch die Sendung “Jauch” ansehen; Thomas Lückerath formulierte für DWDL dementsprechend gleich eine ganze Reihe an Fragen:

Das Snowden-Interview markiert – auf einem Nebenschauplatz abseits der inhaltlichen Aussagen Snowdens – damit einen neuen Höhepunkt in der Fragwürdigkeit der seit vielen Jahren massiv kritisierten Töchterfirmen-Netze der Öffentlich-Rechtlichen. Zu welchen Konditionen verkauft eigentlich eine NDR-Tochter dem eigenen Mutterhaus ein Interview? Wer hat da eigentlich wem etwas zu sagen? Wie kann es sein, dass der NDR sich von der beauftragten Firma die Rechte vorschreiben lässt? Und wie sinnvoll ist ein solches Konstrukt, dass den zunächst so spektakulär klingenden Coup eines Exklusiv-Interviews mit Edward Snowden letztlich zum geo-begrenzten Regional-Spektakel macht?

Zwar ist das Interview mittlerweile zumindest in Deutschland auch in der Originalfassung verfügbar, deshalb aber noch lange nicht frei verwendbar. Ausschnitte davon in ein eigenes Blog einzubinden ist beispielsweise nicht möglich. Marcel Weiss kommentierte die Situation auf Twitter wie folgt:

cc-zdf-miniUnd das Snowden-Interview ist tatsächlich nur das jüngste und ein besonders sichtbares Beispiel für ein allgemeineres Problem: Obwohl öffentlich-rechtliche Inhalte von der Allgemeinheit über Beiträge finanziert werden, sind sie deshalb noch lange nicht für die Allgemeinheit frei zugänglich – und zwar nicht einmal in jenen Fällen, in denen es sich um reine Eigenproduktionen ohne Fremdmaterial und ohne nachgelagerte Verwertungsketten handelt. Die verstärkte Nutzung von Creative Commons könnte hier Abhilfe schaffen und so den öffentlich-rechtlichen Rundfunkanstalten auch ermöglichen, deren Bildungs- und Unterhaltungsauftrag noch besser zu erfüllen.

Nicht zuletzt deshalb habe ich auch für D64 e. V. ein White Paper (PDF) verfasst, das sich mit den Potentialen und Hürden für Creative Commons im öffentlich-rechtlichen Rundfunk auseinandersetzt. Das White Paper wurde heute im Rahmen der laufenden D64-Intiative zur Förderung von Creative Commons vorgestellt (vgl. Pressemeldung). Der Abstract liest sich wie folgt:

Einer der größten von der Allgemeinheit finanzierten Produzenten urheberrechtlich geschützter Inhalte in Deutschland ist der öffentlich-rechtliche Rundfunk. Dennoch sind, abgesehen von vereinzelten Ausnahmen, die so finanzierten Werke nicht für die Öffentlichkeit frei verfüg- und nutzbar. Eine verstärkte Nutzung von Creative-Commons-Lizenzen im Bereich des öffentlich-rechtlichen Rundfunks würde der Verbreitung der produzierten Inhalte dienen und eine Weiternutzung in den verschiedensten Kontexten vereinfachen – etwa im Bildungsbereich. Hinzu kommt, dass offen lizenzierte Inhalte trotz der Depublizierungspflicht einfacher online verfügbar bleiben. Das vorliegende White Paper behandelt Fragen wie welche Hürden für eine Creative Commons-Nutzung bestehen, für welche Inhalte Creative Commons in Frage kommt und welche Lizenzoptionen dabei gewählt werden sollten. Im Ergebnis könnte der öffentlich-rechtliche Rundfunk seinen ihm erteilten Auftrag besser erfüllen – die Beitragszahlenden informieren und unterhalten.

Wie aus dem ARD-Umfeld in Erfahrung zu bringen war, gibt es in der ARD bereits eine Arbeitsgruppe zum Thema Creative Commons. Vielleicht kann das White Paper ja auch dazu einen Beitrag leisten, dass es hier zu mutigen Empfehlungen und damit einem stärkeren Einsatz von Creative Commons im öffentlich-rechtlichen Rundfunk kommt.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Public domain wins copyright week!

Mike Linksvayer, January 20, 2014 12:46 AM   License: CC0 1.0 Universal

public domain wins copyright weekEFF coordinated a six day copyright week, with suggested readings and actions in support of six principles, below with readings + actions count:

  • Transparency: 10 + 1 = 11
  • Building and Defending a Robust Public Domain: 16 + 0 = 16
  • Open Access: 9 + 2 = 11
  • You Bought it, You Own It: 8 + 3 = 11
  • Fair Use Rights: 14 + 1 = 15
  • Getting Copyright Right: 7 + 1 = 8

I couldn’t help but notice that the public domain “wins” by the metric of total readings + actions, perhaps indicative of relative enthusiasm and evaluation of importance by the communities EFF reaches. Good.

The apparent “loser” is getting copyright right, which I’ll also take undue satisfaction in: it’s an impoverished objective, relative to expanding and protecting intellectual freedom. Alternatively, public domain maximalism (second alternative, corresponding to the runner-up: fair use maximalism) is getting copyright right. But I acknowledge advocating “getting copyright right” (and the entire exercise of copyright week) is a fine thing to do given constraints, and its “loss” is likely due to being a more difficult writing assignment, and falling on the last day.

The latent “loser” though is the role of commons initiatives in changing the knowledge economy, thus the range of policies which can be imagined, and the resources available to support various policies. Some initiatives are mentioned, but almost exclusively as victims of costs imposed by bad policy. Daniel Mietchen’s Wikimedia and Open Access might be the reading closest to what I’d like to see a whole day dedicated to (on the seventh day of copyright week, commoners made their own freedom). Though starting with copyright-imposed costs to the project, Mietchen proceeds to describe collaboration among Wikimedians and the Open Access movement, and ends with (implied) competition:

wider exposure of Open Access materials through Wikimedia platforms may perhaps serve as an incentive for researchers to reconsider whether putting their articles behind access and reuse barriers is an appropriate approach to publishing them.

Related, because it is the domain of the most robust commons initiatives, it is too bad software was not the primary topic of several copyright week readings and actions. But even ignoring the seventh day angle, it is incredibly short-sighted to treat software as a separate category, whether for purposes of study or policy (e.g., copyright). All of the traditional subjects of copyright are now largely made with and mediated by software, but that’s just the beginning. Soon enough, they’ll all be software, or be obsolete. (In hindsight I should have noticed copyright week approaching, and urged various free/open source software initiatives to participate, and explain their policy relevance and potency.)

Back to cheering, I highly recommend at least skimming a few of the readings in each category, linked on the EFF copyright week page. Unless you follow knowledge policy writ large really closely, you’re almost certain to learn something new about policy battles that will play a large role in shaping the future of society.

To make up for the lack of copyright week “actions” recommended for building and defending a robust public domain: sign the public domain manifesto, upgrade your work to the public domain, and enjoy and share the greatest public domain film to date.

Make your voice heard to fix copyright in the EU!

Communia Association, January 17, 2014 01:50 PM   License: CC0 1.0 Universal

As we have mentioned here before, the European Commission has launched a consultation on the future of European copyright policy. The responses provided to the questionnaire must be submitted by 5 February 2014 and will be used as a justification for future policy proposals from the Commission. If citizens and professionals don’t make their voice heard the outcomes of the consultation will likely be used to further limit citizens’ rights to create, share and access culture and to further weaken the public domain.

Fix copyright – take part in the consultation

In order to prevent this from happening, COMMUNIA has joined forces with a range of other NGOs and professional associations to produce a tool that helps citizens and professionals to respond to the consultation in a way that promotes access to culture and a strengthening of the the public domain. The results of this collaboration can be found at

The tool lets you filter the 80 questions from the consultation document based on a number of different personas (we have compiled selections for online users, parents, teachers/academics/researchers, freelancers/entrepreneurs/businesspersons, librarians/cultural heritage professionals, bloggers/remixers, disabled users and rights holders). There is of course an option to answer all questions. The website also provides background information and advice on how to respond to the questions.

If you care about a copyright system that promotes innovation and access to culture in the digital environment and if you care about the public domain, you should respond to the consultation today! You may also want to ask friends and colleagues to do the same.

The Copyright Directive and User Freedoms

It is not very often that citizens get the chance to make their voice heard in the complicated and often very opaque discussions about European copyright policy. This is the first time that the European Commission is soliciting a broad range questions (some of which are rather sensible, others not so much) about the core of the existing legal framework, the 2001 Copyright in the Information Society Directive. This directive establishes a number of user freedoms (‘exceptions and limitations’ in the language of the directive) to make use of copyrighted material without prior authorisation for purposes related to education, use by disabled persons, access to cultural heritage and private use.

These user freedoms are important in shaping the contours of what is regulated by copyright and what is not. By pushing for an extension of these user freedoms, copyright can be brought back to a more sensible system that protects the legitimate interests of creators without needlessly limiting uses that are beneficial to society as a whole. The consultation provides a lot of opportunities to make this argument.

In addition, the consultation contains questions on lots of other topics that are dear to COMMUNIA. These include the length of copyright protection (hint: it is too long) and questions about registration of works (an important idea). You can find more information on how the questions in the consultation relate to our own policy recommendations in our previous post on the consultation.

Still with us? Then please go and answer the consultation now!

“We Need To Start Seeing Other Futures..”

James Boyle, January 14, 2014 11:36 PM   License: Attribution 3.0 Unported

Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks. And the problem doesn’t lie with us. In all honesty, we need more space. We need to start seeing other futures. Because the shape of our copyright laws affects our networks of search and speech. Frequently, it determines our access to cultural objects, educational materials and scientific literature. It shapes the way music and documentaries are made (or not made). It can even determine the way that our technologies develop (or don’t.) So this is important stuff. Maybe we should pay attention. 2014-01-14-totalcontrol_pdd2013_topimage.jpg

Copyright week has a daily series of themes. Monday was transparency, the utterly radical idea that we should make important decisions about culture and technology openly. As I wrote in the Financial Times back in 2010,

Those of you who use that useful communications network known as “the Internet” might be interested to know that a treaty that could profoundly affect your rights is now being negotiated by a group of developed states including the United States and the EU. What is in the treaty? Well, that is something of a mystery. The treaty in question is called ACTA, the Anti-Counterfeiting Trade Agreement. When Knowledge Ecology International filed a Freedom of Information Act request for the draft of the treaty, the Obama Administration refused, claiming that this was “information that is properly classified in the interest of national security.

National security? It is irresistible to imagine Jack Bauer or Carrie Mathison, Glock leveled, telling us to move away from the Trade Agreement’s provisions on copyright infringement, or drug patents. “Step away from Article 1, sub para 4 or I shoot!” It would be funny if it wasn’t sad. ACTA died, thanks to unauthorized leaks and pressure in Europe. The office of the United States Trade Representative — which truly has behaved shamefully, assuming one believes that public servants should serve the public — is back at work, however, negotiating a new agreement called the Trans Pacific Partnership Agreement. That agreement, too, is classified and again we know about its contents only by leaks — leaks that may expose the leakers to criminal penalties. Great way to have a democratic dialogue. As Senator Elizabeth Warren commented,

I have heard the argument that transparency would undermine the Trade Representative’s policy to complete the trade agreement because public opposition would be significant. In other words, if people knew what was going on, they would stop it. This argument is exactly backwards. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.

What a radical firebrand she is! Democratic accountability! What’s next? Demands for empirical evidence that our policies are a good idea?

January 14 2014, Tuesday of Copyright Week, is devoted to the public domain — the material that is free for all to read, share and reuse without permission or fee. I’ve written a book about how important the public domain is, (you can download it from here, free. Thank you Yale University Press!)

I won’t try and repeat all those arguments in this space, but here is just one. When this nation was founded, works went into the public domain after just 14 years — which turns out to be pretty close to what economists estimate is the economically optimal copyright term. Even as late as 1976, you only got 28 years of copyright protection, renewable for another 28 years if you wished. 85 percent of all copyright holders and 93 percent of authors did not renew. It was not worth it. But we kept renewing the copyright term and we did so retrospectively, sucking vast swaths of culture into copyright — frequently stuff that was commercially unavailable and where the author could not be found. No one benefited in other words. Copyright functioned entirely as a fence — barring entry but conferring no benefit.

Every year, my Center at Duke does a study of what would have entered the public domain, had we kept our old laws.

This what could have entered the public domain on January 1st 2014, if we still had the copyright laws we had in 1976.

And this is what we would have got in 2013.

The sad thing isn’t  that a majority of our Supreme Court doesn’t believe that the public has any legally cognizable interest in the public domain. The sad thing is not even that we did not receive those works on the day copyright had originally determined they would enter the public domain. These famous works actually still are available — we can get them, just at a higher price and under more restrictions than we should have to bear. The sad thing is all the unknown works we have denied ourselves, for no good reason at all — torching our cultural heritage as effectively as anything the firemen in Fahrenheit 451 (a book that should have entered the public domain in 2010) could ever have done.

Now that is a tragedy. And perhaps good reason for us to take notice of Copyright Week. We need to start seeing other futures — because this relationship with our culture isn’t turning out too well.

Originally featured at

Calculating the Public Domain

Communia Association, January 14, 2014 04:26 PM   License: CC0 1.0 Universal

Many people recognise the value of works which are in the public domain and may even be familiar with many initiatives that provide access to public domain works (such as the Internet Archive, Wikimedia Commons, Project Gutenberg, etc). Yet, many people do not have a very clear conception of what the public domain is or why it is important.

New digital technologies make it possible for the public to access a vast quantity of cultural and historical material. Much of this material is in the public domain, and ongoing digitisation efforts mean that much more public domain material (in which copyright has expired) will be made available for the public to enjoy, share, and reuse.

However, it is often difficult to determine whether a work has entered the public domain in any given jurisdiction, because the terms of copyright protection differ from country to country. And  people are sometimes unclear about what can or cannot be done with works in the public domain. Copyright laws are complicated, and for the layperson it may not be clear how they apply in relation to a specific work. Though there are many international and multinational copyright agreements and copyright organisations, the exact details of copyright law vary from one country to another. Different countries have different legal systems and traditions – and copyright laws reflect these differences. Hence, given that works enter the public domain under different circumstances depending on the country, oftentimes the status of an individual work cannot be universally established. Rather, it needs to be evaluated on a case-by-case basis for every jurisdiction.

In order to make public domain determinations a less daunting task, the Open Knowledge Foundation has been working on the development of the Public Domain Calculators ( – a tool that enables people to determine the copyright status of a work (in the public domain, or not), thus helping users realize the value of artworks from the past.

A look into the past ..

The Open Knowledge Foundation began working on the first implementation of the Public Domain Calculators in 2006, then for the Public Domain Works project, whose goal was to identify sound recordings which are in the public domain in the United Kingdom, based on metadata provided by the BBC and private collectors. In 2007, as Public Domain Works began working with the Open Library project, the idea emerged to create a set of algorithms for determining the public domain status of a work in different jurisdictions.

At the first Communia workshop in 2008, the Open Knowledge Foundation proposed collaborating with legal experts in the network to create a set of public domain calculators for different jurisdictions in Europe. These discussions eventually led to the creation of the Public Domain Working Group, who planned to work on public domain calculators across Europe.

After several years, thanks to the support of a large community of legal and technical experts, the public domain calculators of the Open Knowledge Foundation are now a functional piece of software which can help people determine the copyright status of a work. Based on the research done by Europeana Connect (a project funded by the European Community Programme eContentplus), the public domain calculators rely on a series of national flowcharts which represents the provision of copyright law in the form of a decision tree. For any given work, the public domain calculators can determine whether or not that work is in the public domain in any given jurisdiction by matching the bibliographic metadata attached to that work against the provisions of copyright law for that particular jurisdiction.

In terms of technology, the Public Domain Calculators of the Open Knowledge Foundation shares similarities with the those recently developed by Kennisland and the Institute for Information Law at the University of Amsterdam (IviR) in the framework of Europeana Connect. The main difference between the two is that the OKFN calculators have been designed to be completely independent from any user input and are therefore completely automated. This represents the most innovative aspect of this technology. By gathering the relevant metadata from a variety of databases, the public domain calculators only process the data necessary to identify the legal status of a work, so as to subsequently present them to the users upon request.

A glance into the future ..

The value of the Public Domain Calculators has recently been acknowledged by the French Ministry of Culture, which created a partnership with Open Knowledge Foundation France to develop a working prototype of the calculators for the French jurisdiction. In collaboration with two pilot institutions, the Bibliothèque Nationale de France and the Médiathèque de l’architecture et du patrimoine, the calculator will be presented as a pedagogical tool for the cultural sector to better understand the legal status of the works and the value of the metadata it produces.

In France, this comes at an important time, as we’re entering the time when most of the works produced by authors who died during the second world war would, theoretically, enter the public domain. Yet, French copyright law stipulates that authors who died during the war in the name of France have extended terms of protection. Hence, by applying the standard 70 years post-mortem rule, a number of works which are still eligible for copyright protection might end up being incorrectly assumed to be in the public domain. The public domain calculators represent a technological solution to help people identify whether or not these works have indeed entered into the public domain.

But the value of the public domain calculators extends far beyond highlighting the peculiarities of national copyright laws. Their objective is also to promote good practices within the cultural sector. Hence, in France, in addition to being a mere pedagogical tool, the calculators will also be employed as a benchmarking tool to help cultural institutions identify flaws and gaps in the structure or content of their bibliographical metadata, so as to ultimately increase the accuracy of the results.

We hope that other countries will follow the example of France, and that the potential of the public domain calculators as a means to promote good open data policies within the cultural sector will be appreciated by many other countries around the world.

Preserving the Public Domain

Communia Association, January 14, 2014 04:21 PM   License: CC0 1.0 Universal

Copyright Week provides a timely opportunity to reflect on Communia’s mission to preserve the public domain and our common heritage against copyright extension, misleading attempts to privatize public domain works, the shrinking of users’ rights, and the general trend in extending the scope of copyright in ways detrimental to the production of culture and knowledge.

Communia began as a European Union-funded research network, consisting of an initial group of 50 researchers, practitioners and activists, and led by Juan Carlos De Martin. Communia was joined by non-European institutions in order to study the public domain at large, and also related topics such as open licensing, copyright exceptions and limitations, orphan works, and open data. Unusually, the Communia project produced a piece of work not foreseen in the original grant agreement, the Public Domain Manifesto. The Manifesto is an emblematic text stating that the public domain, the obverse of copyright, is a wealth of works which are difficult to identify and to define. The Manifesto proclaims, Public Domain is the rule and that copyright is the exception.

At the end of the EU-funded Communia Thematic Network, some members decided to continue the work of the group by creating an international association. Its mission is to raise awareness in, educate about, advocate for, offer expertise on, and research the Public Domain in the digital age– within society and with policymakers, at the EU level and worldwide. The first task was to summarize the policy recommendations contained in the Manifesto to constitute the basis of all the association’s future actions. You can download these recommendation as a set of 14 postcards, each displaying a policy recommendation on a work of art which is in the public domain.

Communia comments on draft legislation, especially European Union Directive drafts, in order to advocate for a more balanced public policy that incorporates the public domain as a vibrant collective resource. The organization has provided feedback and recommendations on a variety of issues, including collective societies allowing authors to use Creative Commons licensing, easier management of orphan works, better access to and reuse of public sector information, and open access to scientific data. Will Communia’s next challenge be the widespread recognition of the benefits to the public domain by European and international law? In 2014, Communia will reply to the EC consultation on copyright and continue follow up work on the public domain as an observer at WIPO. Besides writing policy papers, commenting on legislative proposals, and advocating for the inclusion of public domain in policy conversations. Perhaps the most useful work Communia will be involved with is developing a positive agenda to recognize a full statute for the public domain, with defined rights of its own, so that the public domain will survive and thrive.

Annual thematic doubt

Mike Linksvayer, January 11, 2014 05:56 AM   License: CC0 1.0 Universal

As promised, my first annual thematic doubt post, expressing doubts I have about themes I blogged about during 2013.

Intellectual Freedom

If this blog were to have a main purpose other than serving as a despository for my tangents, it’d be protecting and promoting intellectual freedom, in particular through the mechanisms of free/open/knowledge commons movements, and in reframing information and innovation policy with freedom and equality outcomes as top. Some representative posts: Economics and the Commons Conference [knowledge stream] report, Flow ∨ incentive 2013 anthology winner, z3R01P. I’m also fond of pointing out where these issues surface in unusual places and surfacing them where they are latent.

I’m fairly convinced on this theme: regimes infringing on intellectual freedom are individual and collective mind-rot, and “merely” accentuate the tendencies toward inequality and control of whatever systems they are embedded in. Mitigating, militating against, outcompeting, and abolishing such regimes are trivially for the good, low risk, and non-revolutionary. But sure, I have doubts:

  • Though I see their accentuation of inequality and control as increasingly important, and high leverage for determining future outcomes, copyright and patent could instead be froth. The cause of intellectual freedom might be better helped by fighting for traditional free speech issues, for tolerance, against mass incarceration, against the drug war, against war, against corruption, for whatever one’s favored economic system is…
  • The voluntarily constructed commons that I emphasize (e.g., free software, open access) could be a trap: everything seems to grow fast as population (and faster, internet population) grows, but this could cloud these commons being systematically outcompeted. Rather than being undersold, product competition from the commons will never outgrow their dwarfish forms, will never shift nor take the commanding heights (e.g., premium video, pharma) and hence are a burden to both policy and beating-of-the-bounds competition. Plus, copyright and the like are mind-rot: generations of commons activists minds have been rotted and co-opted by learning to work within protectionist regimes rather than fighting and ignoring them.
  • An intellectual freedom infringing regime which produced faster technical innovation than an intellectual freedom respecting regime could render the latter irrelevant, like industrial societies rendered agricultural societies irrelevant, and agricultural societies rendered hunter-gatherer societies irrelevant, whatever the effects of those transitions on freedom and other values were. I don’t believe the current regime is anywhere close to being such a thing, nor are the usual “IP maximalism” reforms taking it in that direction. But it is possible that innovation policy is all that matters. Neither freedom and equality nor the rents of incumbents matter, except as obstacles and diversions from discovering and implementing innovation policy optimized to produce the most technical innovation.

I’m not, but can easily imagine being won over by these doubts. Each merits engagement, which could result in much stronger arguments for intellectual freedom, especially knowledge commons.

Critical Cheering

Unplanned, unnoticed by me until late in the year, my most pervasive subtheme was criticism-embedded-in-praise of free/open/commons entities and actions. Representative posts, title replaced with main target: Creative Commons, crowdfunding, Defensive Patent License, Document Freedom Day, DRM-in-HTML5 outrage, EFF, federated social web, Internet Archive, Open Knowledge Foundation, SOPA/ACTA online protests, surveillance outrage, and the Wikimedia movement.

This is an old theme: examples from 2004, 2005, 2006, 2007, 2008, 2011, and 2012. 2009 and 2010 are absent, but the reason for my light blogging here bears some relation to the theme: those are the years I was, in theory, most intensely trying to “walk my talk” at Creative Commons (and mostly failed, side-tracked by trying to get the organization to follow much more basic best practices, and by vast amounts of silliness).

Doubts about the cheering part are implied in the previous section. I’ll focus on the criticism here, but cheering is the larger component, and real: of entities criticized in the above links, in 2013 I donated money to at least EFF, FSF, and Internet Archive, and uncritically promoted all of them at various points. The criticism part amounts to:

  • Gains could be had from better coordination among entities and across domains, ranging from collaboration toward a short term goal (e.g., free format adoption) to diffuse mutual reinforcement that comes from shared knowledge, appreciation, and adoption of free/open/commons tools and materials across domains (e.g., open education people use open source software as inherent part of their practice of openness, and vice versa).
  • The commons are politically potent, in at least two ways: minimally, as existence proof for creativity and innovation in an intellectual freedom respecting regime (carved out); and vastly underappreciated, as destroyer of rents dependent on the intellectual freedom infringing regime, and of resources available for defending those rents and the regime. Commons are not merely to be protected from further bad policy, but are actors in creating a good policy environment, and should be promoted at every turn.

To be clear, my criticism is not usually a call for more “radical” or “extreme” steps or messages, rather more fulsome and coordinated ones. Admittedly, sometimes it may be hard to tell the difference — and this leads to my doubts:

  • Given that coordination is hard, gaining knowledge is expensive, and optimization path dependent, the entities and movements I criticize may not have room to improve, at least not in the direction I want them to improve in. The cost of making “more fulsome and coordinated” true might be greater than mutual reinforcement and other gains.
  • See the second doubt in the previous section — competition from the commons might be futile. Rather than promoting them at every turn, they should sometimes be held up as victims of bad policy, to be protected, and sometimes hidden from policy discourse.

The first doubt is surely merited, at least for many entities on many issues. For any criticism I have in this space, it makes sense to give the criticized the benefit of the doubt; they know their constraints pretty well, while I’m just making abstract speculations. Still, I think it’s worthwhile to call for more fulsome and coordinated strategy in the interstices of these movements, e.g., conversation and even this blog, in the hope of long-term learning, played out over years in existing entities and movements, and new ones. I will try henceforth to do so more often in a “big picture” way, or through example, and less often through criticism of specific choices made by specific entities — in retrospect the stream of the latter on this blog over the last year has been tedious.

International Apartheid

For example: Abolish Foreignness, Do we have any scrap of evidence that [the Chinese Exclusion Act] made us better off?, and Opposing “illegal” immigration is xenophobic, or more bluntly, advocating for apartheid “because it’s the law”. I hinted at a subtheme about the role of cities, to be filled out later.

The system is grossly unjust and ought be abolished, about that I have no doubt. Existing institutions and arrangements must adapt. But, two doubts about my approach:

  • Too little expression of empathy with those who assume the goodness of current policy. Fear of change, competition, “other” are all deep. Too little about how current unjust system can be unwound in a way the mitigates any reality behind these fears. Too little about how benefits attributed to current unjust system can be maintained under a freedom respecting regime. (This doubt also applies to the intellectual freedom theme.)
  • Figuring out development might be more feasible, and certainly would have more impact on human welfare, individual autonomy, than smashing the international apartheid system. Local improvements to education, business, governance, are what all ought focus on — though development economics has a dismal record, it at least has the right target. Migration is a sideshow.

As with the intellectual freedom theme, these doubts merit engagement, and such will strengthen the case for freedom. But even moreso than in the case of intellectual freedom infringing regimes, the unconscionable and murderous injustice of the international apartheid regime must be condemned from the rooftops. It is sickening and unproductive to allow discourse on this topic to proceed as if the regime is anything but an abomination, however unfeasible its destruction may seem in the short term.


Although much of what I write here can be deemed political, one political theme not subsumed by others is inadequate self-regulation of the government “market”, e.g., What to do about democratically elected terrorist regimes, Suppose they gave a war on terror and a few exposed it as terror, and Why does the U.S. federal government permit negative sum competition among U.S. states and localities?

The main problem with this theme is omission rather than doubt — no solutions proposed. Had I done so, I’d have plenty to doubt.


I fell behind, doing refuting only posts from first and second quarters of 2005. My doubt about this enjoyable exercise is that it is too contrived. Many of the refutations are flippant and don’t reflect any real doubts or knowledge gained in the last 8 years. That doubt is what led me to the exercise of this post. How did I do?

Creative Commons startet Open Policy Network und Kaderschmiede für ‘Open Leadership’

Markus Beckedahl, January 09, 2014 09:21 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Via Blogeintrag verkündete Creative Commons heute gleich zwei Neugründungen: Das Open Policy Network (OPN) und das Institute for Open Leadership (IOL).


Im Open Policy Network soll es um die Sammlung, Diskussion und Weiterentwicklung von Leitlinien und Vorgaben für öffentliche Einrichtungen und Förderprogramme in Sachen Offenheit gehen. Das Mission-Statement lautet wie folgt (meine Übersetzung):

Die Mission des Open Policy Networks ist die Förderung von Entwicklung, Anwendung und Implementierung von offenen Leitlinien und Praktiken zum Wohle der Allgemeinheit, indem Fürsprecher, Organisationen und Entscheidungsträger mit Informationen und Expertise unterstützt werden und auf diese Weise beim Ausschöpfen von Handlungsoptionen mitzuhelfen.

Interessierte Einzelpersonen und Gruppen sollen sich vorerst in einer Google-Group anmelden.


Das Institute für Open Leadership wiederum soll eine Art Kaderschmiede für EntscheidungsträgerInnen im Bereich digitaler Offenheit werden. In einem zweijährigen Programm für bis zu 20 Personen mit 1-wöchiger Präsenzphase sollen nicht nur Inhalte vermittelt sondern auch konkrete Projekte umgesetzt werden. Die Bewerbungsphase für die erste Kohorte läuft von März bis Mai 2014.

Anschubfinanzierung für beide Neugründungen kommen von der William and Flora Hewlett Foundation and den Open Society Foundations.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Discussion: “The Foolish War Against Song-Lyric Websites”

James Boyle, January 05, 2014 03:13 AM   License: Attribution 3.0 Unported

Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as  He joins issue in particular with David Lowery and Mr. Lowery’s recent Undesirable Lyric Website List which attempts to identify song lyric websites that appear to be unlicensed — a list that has prompted legal action against some of these sites.  The title of Professor Cummings’ article — “The Foolish War Against Song Lyrics Websites” — gives some sense of his thesis.

I have written criticizing the move to regulate music copyright in an increasingly granular way and the tendency to claim copyright infringement for actions that prior generations took as a normal part of creativity.  I have argued both in my book The Public Domain and in a comic book on fair use that the introduction of  a “borrowing = wrong = a need for licensing” culture may well a.) fundamentally misstate the law and b.)  be bad for  creativity, in music and elsewhere.  I have also argued that we should not have a vision of perpetually expanding copyright that aims for total control over every use of copyrighted work — that that is foreign  to the Anglo-American intellectual property tradition and potentially dangerous to the architecture of the open internet.

So when Professor Cummings criticizes the attempt to force song lyric websites to pay licensing fees to the copyright owners of the lyrics of those songs, I should wholeheartedly agree with him.  Right?  Actually, I find the issue much more complex.   As I see it, Professor Cummings has two main arguments.  [The article is short -- so please read it yourselves and do not rely on my summary.]  The first is based on the difficulty or impossibility of enforcing rights online (which of course is not a normative position, just a practical one) and the second based on the idea that intellectual property rights are limited, not absolute, and their constant expansion is unwise.

On the first, I find this argument incomplete.

Lots of laws are hard to enforce.  For many  of them — for example, those that criminalize very low level speeding or private consensual adult sexual activity that violates norms against certain types of sexual desire — we think that the difficulty of enforcement is either a really good thing, or no big deal.  For others, such as laws against human trafficking, or random marine spot pollution that is hard to trace to an individual source — we think that the difficulty of enforcement is tragic; we’d love full enforcement if we could.  I am not saying any of these is morally equivalent to quoting lyrics..  Duh.  I am saying that the assertion that  the law is hard to enforce tells us little about whether that is a good or a bad thing.  And the difficulty of enforcement, by definition, is not a very good argument against the attempt to… well, enforce the law:  the very thing Mr. Lowery is attempting to galvanize copyright holders to do.   In fact, if it is so hard to enforce, why worry about his attempts?   Difficulty of enforcement can be part of a normative argument.  At the end of Prohibition, the fact that enforcement was so hard because people did not find the law to be legitimate provided a good argument for repeal.  And one could argue such a case here.  But enforcement difficulties alone don’t provide a normative ground to stand on.

On the second argument:  Intellectual property rights are limited and not absolute and we should not constantly be expanding them towards total control.  +1 on that argument.  But to be fair to Mr. Lowery, the right he is asking be enforced — namely that over the unlicensed reproduction of lyrics — is not  an expansion of copyright.  In fact, the right to control reproduction of lyrics is probably the oldest right in the music copyright bundle.  There was a time when songwriters had neither the right to control public performances, nor mechanical reproductions, nor performances over the radio.  In each case, the law was expanded to cover those uses.  But ever since copyright has covered songs, composers have had the right to control the copying (at least the commercial copying) of their lyrics.  That is a point worth emphasizing.

One can argue whether exercising that control is wise on the part of the artist, though that is surely the artist’s decision to make, provided it is within his or her exclusive rights under copyright.  Or one could argue whether, if accompanied by commentary and critique — as in Rapgenius — the reproduction of lyrics is a fair use under section 107 of the copyright act.   (In which case it would not be within their exclusive rights.)  To be clear, I think some quotations of lyrics online  definitely qualify as a fair use. What about an entire, relatively complete library of song lyrics, reproduced in their entirety — particularly one with commercial goals and VC funding?  There the fair use argument is harder to make.   But leaving aside the fair use point, it is not an expansion of copyright for one to attempt to cover that kind of activity.     Nor does it seem unjust in the least for the song writer to ask for licensing fees for inclusion of lyrics in such a for profit enterprise.  A true, non commercial fan site, with episodic and fragmentary inclusion of lyrics, interspersed with commentary would be very different. In other words, it is fact specific.  And commercial sites that are truly transformative and provide limited access to snippets of material that would otherwise be inaccessible and in which the demand for up-front permission would destroy the index — think Google Books — can be fair uses.   Yet Google Books would not have been found a fair use if it gave you the entire copyrighted work.   Those who know more about lyrics sites can judge how many fall on each side of those lines.

Bottom line: one can be against the demand for commercial lyric reproduction sites to pay licensing fees to song writers.  But one cannot really portray that demand as an expansion of copyright.  It is just an application of the oldest right in the composer’s bundle of rights.  One can be against the entire bundle, of course.  (I am very definitely not, but some are.)   Or one could say that attempts to regulate the internet to ensure full and perfect compliance with all rights will lead to unwise regulation of the technology in a way that will hurt all of us, creators and audiences alike.  (I would agree with that point.)   But on grounds of both law and policy, I think that more nuance is needed before we criticize the lyricist who wants to get paid from a large scale commercial site that is aiming to make money by reproducing lyrics in their entirety, that is, doing something that has been central to the rights of copyright holders for a long time.  That’s different, I think, than trying to stop non profit uses, amateur remixes or commercial borrowings that take a few bars of a jazz standard or a James Brown song, and build them into an entirely different song.  One can be for or against all of these, but one should not think they are the same.  And if, when I can’t remember the lyric from that song, or want to get someone to explain to me whether The Beat’s “Save it For Later” is really an homage to oral sex, or why Elvis Costello is worried about “Night Rallies,” my click — and the ads it loaded onto the slick, commercial, virus-free site where I found the words — if that click sent a fraction of a cent to The Beat or to Elvis Costello, as well as to the people who coded the website, why then I would think that was a pretty good result.


Clubbing out of the vicious circle of bad policy (patents)

Mike Linksvayer, January 02, 2014 09:32 PM   License: CC0 1.0 Universal

Glyn Moody in Defensive Patent Licence: Nice Idea; Not Much Use:

The rest of Linksvayer’s thoughtful post explores these ideas and their background, and in particular looks at how they fit with other aspects of free software.

My fascinating post (thanks).

It’s well worth reading, even if the DPL itself is likely to have relatively little impact. That’s because it only applies to those who join the DPL club, which creates a typical vicious circle: few entities in the club to start with mean that few patents are made available on an royalty-free basis, and so there’s little incentive for more entities to join.

The vicious cycle can be overcome. Joining the club is very low barrier: gratis, and an entity doesn’t even have to hold any patents. Royalty-free patents from club members is only part of the reason for joining. Another is expression — taking advantage of the patent skepticism of many people, and exploiting for ethical branding and recruitment. These patent pool and expressive incentives could be mutually re-enforcing: the more entities join, the larger the pool, and the stronger the expectation that non-evil entities join.

Whether the vicious cycle will be overcome comes down to sales. The DPL people have put in place a lot of groundwork that will help — seemingly a large amount of work by credible people into making the DPL a robust legal instrument, a credible group of people as advisors (and presumably an impressive board when it reaches that stage), presumably some amount of funding. This combination of gravitas and resources would make it possible for a tireless campaigner (the pre-conditions do remind me of Creative Commons, whose tireless campaigner was Lawrence Lessig) or sales team befitting the target market to succeed in getting lots of entities to join the club.

One indicator after the DPL’s public launch next month will be whether the next columns and stories by journalists continue to focus on the barrier of lack of network effects, or on celebrating early joiners and urging other entities to follow as an urgent matter of public policy or industry best practice. This will be an indicator in large part because the DPL people’s efforts right now can shape these stories.

Still, it’s nice to see people thinking innovatively in this space as we work towards the ultimate goal of full abolition of software patents everywhere.

Indeed, though the DPL applies to all patents, and all patents everywhere should be fully abolished, as I’m pretty sure Moody agrees (but probably not the DPL people; that’s OK, they made a useful tool).

You can attend the DPL launch conference in Berkeley: February 28November 7, 2014, gratis registration. Your organization should join the club, now!

Video of the DPL birthday is up on the Internet Archive.

Happy GNU Year & Public Domain Day

Mike Linksvayer, January 02, 2014 05:18 AM   License: CC0 1.0 Universal

happy gnu year and public domain day

Any previous combinations? Reminded of GNU year greetings by Laurel Russwurm and Public Domain Day by the Public Domain Review and Center for the Study of the Public Domain.

My previous Public Domain Day posts:

Echoing the 2011 entry, I recently urged all to upgrade to CC0 (a public domain dedication and license). Also, January 1 is a good date to reiterate:

Unless stated otherwise, everything by me, Mike Linksvayer, published anywhere, is hereby placed in the public domain.

Join me. More importantly, unless you’re prodigious, demand that at the very least all government material go directly into the public domain.

The bottom part of the image is from The Gnoo (1804) by Samuel Daniell (1775-1811). The top is from an illustration (1883) by Louis-Maurice Boutet de Monvel (1851-1913). Latter selected because it is newly unambiguously in the public domain worldwide, including Mexico, which has life + 100 years of restriction. It would not be shocking to see this term ratchet worldwide in the next years.

Bonus links:

Please Support Creative Commons

Michael Carroll, December 31, 2013 10:56 PM   License: Attribution 2.5 Generic

It's not too late.  If you haven't already done so, please help support Creative Commons.   Find out how you can help support open education, open culture, open government, open science, and much more.

To donate:

CC11x11, before, 0, &freebassel

Mike Linksvayer, December 16, 2013 08:16 AM   License: CC0 1.0 Universal

Gimped CC cake 10 / BY / Kristina Alexanderson
(I wrote 90% of this post a year ago; currently unaware of any actual CC 11 cakes or celebrations.)

Today is the 11th anniversary of the launch of the first version of the first 11 Creative Commons licenses. Depending how one counts, there are now as few as 0, though 6 is probably the conventional answer (only current international versions of ones that were among the original 11), or as many as 608 (all versions, jurisdiction ports, retired licenses, and public domain instruments).

If 2002-12-16 is a significant marker, I’d like to take a look at what preceded it, very nearby — other public copyright licenses, public domain dedications, and ad hoc sharing statements. Eventually I hope to take a more in-depth look at all of these, and moreso I hope others do research around them.

Prior to the 1980s, such statements are very scattered. Has anyone pieced together commonalities and differences of pro-info-sharing statements through history? Examples…

In 868 the Diamond Sutra included:

Reverently [caused to be] made for universal free distribution by Wang Jie on behalf of his two parents on the 13th of the 4th moon of the 9th year of Xiantong.

1869 Recent Discussions on the Abolition of Patents for Inventions, setting a standard that modern books on advocating reform (inclusive of abolition) fail to meet:

No rights are reserved

1910 the English translation of Gandhi’s Indian Home Rule was printed with the words No Rights Reserved on the title page.

1967 the copyright notice of All Watched Over by Machines of Loving Grace included:

Permission is granted to reprint any of these poems in magazines, books and newspapers if they are given away free.

1976 Tiny BASIC for Intel 8080 included:


1978 In the Making included:

“Alternative publications may reproduce freely provided acknowledgement is made.”

I believe many statements along such lines were published, especially in the last century, but again, as far as I know, nobody has ever thoroughly investigated. I’m very interested, in part because I have a hunch what might be characterized as “information commons” have been malgoverned for the entirety of human history. Why did pro-sharing statements, in the form of public copyright licenses, only become regularized, widespread, and thought by some as creating and protecting commons, in the 1980s, starting with software?

The easy answer is that software had just become clearly restricted by copyright, and programmers have a more immediately compelling need to collaborate across organizational boundaries in a way that implicates copyright restrictions than do others. Still, one may question just how different paths would need to have been for explicit pro-sharing practices to have developed in other domains first, even pre-computer, and how the norms of such practices might have differed. I’ve speculated, very briefly that it’s plausible order could’ve been different, and essentially software freedom norms are a “sweet spot” that would’ve been arrived at anyway. Much more could be said about that, and also about whether and how the explicit pro-sharing practices I’ve recognized as such in this post have crowded out or complemented other pro-sharing practices.

In any case, in the 5 years prior to the launch of the first 11 Creative Commons licenses, there was a proliferation of interest in public copyright licenses for various forms of non-software works (including hardware designs, which took longer to capture much interest, and I won’t cover here). An incomplete list of such licenses released 1998-2002:

Anti-Copyright License, Comic Book Public License, Design Science License, Distributed Encyclopedia General Public License, EFF Open Audio License, Electrohippie Collective’s Ethical Open Documentation License, Ethymonics Free Music License, Free Art License, Free Media License, Free Music Public License, GNU Free Documentation License, No Type License, OpenBits License, Open Content License, Open Directory License, the Open Music licenses, Open Publication License, Open Source Music License, Public Library of Science Open Access License, QING Public Licnese, and Phy-d’eau — License of Intention for Liberty in Expression and Creativity.

Many of these licenses are non-free/open, and nearly all are incompatible with all the rest. These problems preceded Creative Commons. Whether in the past 10 years Creative Commons has on net made these problems better or worse (or merely not better fast enough) is hard to say. One curiosity about these pre-CC licenses is that the only ones remaining in any kind of significant use (Free Art License and Free Documentation License) are free/open, copyleft licenses.

Near certainty of large adoption of public licenses and public domain dedications outside software also preceded CC. The effect one can be most certain of attributing to CC is of killing adoption of the few of these licenses that had any plausibility, and of the development of further non-CC licenses, for awhile. Whether a dominant central license steward was net positive, is hard to say. It’s easy to see some marketing benefits, and some innovation costs, and vice versa.

Some public licenses created for software, mostly the GNU GPL, and BSD licenses, were used for some non-software works before the explosion of non-software public licenses (of which CC was part). An open question is whether this explosion was a good thing at all, or rather a failure on the part of free software license pioneers to occupy a broader space, and create a broader-based, less fragmented movement for intellectual freedom…the part facilitated by public licenses that is.

It’s also possible that free software started with the wrong arrangement in the form of public licenses, and others, including what became CC, ought have tried something different, for example clubs/pools, or skipping voluntary methods altogether. (Many people have focused on one or more of direct action, litigation, and public policy. I tend to think there’s far too little appreciation and collaboration across these methods and voluntary construction, resulting in a further fragmented, scared, and weak movement.)

I didn’t publish a year ago because I’d intended to add sections on the “CC era” of the past 10, now 11 years, and the future. My recent extended quasi-review of CC 4.0 licenses will have to suffice. Now…

Celebrate CC’s 11th birthday:

Upgrade to CC0

Free Bassel

Commission announces public consultation on the review of EU copyright rules

Communia Association, December 11, 2013 10:01 AM   License: CC0 1.0 Universal

Last week Thursday the European Commission launched its much anticipated public consultation on the review of the EU copyright rules. This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of the rather unsuccessful Licenses for Europe stakeholder dialogue). In the words of the Commission the focus of the consultation is on:

… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.

With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related to our own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.

The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short.Below we highlight a number of questions from the consultation. In addition to this we will prepare a more thorough analysis and make our own response to the consultation public at a later date.

Rights and the functioning of the Single Market

The first set of questions deals with ‘Rights and the functioning of the Single Market’. According to the Commission…

…the main issue at stake here is, therefore, whether further measures (legislative or non-legislative, including market-led solutions) need to be taken at EU level in the medium term to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders.

The questions related to this section ask for examples of problems in this area and then invite stakeholders to provide their views on how these problems should be addressed (usually split between ‘legislative solutions’ and ‘other solutions’). This structure repeats itself throughout the consultation.

Specifically, the commission is interested in perspectives on the issue of territoriality of rights clearance (i.e., should the current situation where service providers need to obtain permission for all member states where they want to offer their service be changed, for example by introducing a country of origin rule where rights only need to be cleared for the member state where the service providers is based?).

In addition, this section also contains two questions on linking and browsing that show a worrisome lack of understanding how the internet works:

Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?

Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?

While it should be obvious to anyone who has ever used the internet that requiring authorisation of the right-holders for any of these acts would fundamentally break the internet, it is important to realize that both questions are currently being debated in European courts. In this context it is important that these questions are answered with a resounding no, so that it leaves European policy makers no other option than to propose legislation that would clarify that both browsing and linking do not require permission from rightsholders (or anyone else).

The remainder of this section contains questions that explore the length of copyright protection (Are the current terms of copyright protection still appropriate in the digital environment?) and the registration of works (Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?). Communia has longstanding policy recommendations on both of these issues, and we would hope that in answering the consultation others will look at these recommendations.

Recommendation #1: The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. The term of copyright protection should be reduced.

Recommendation #8: In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection.

Limitations and exceptions in the Single Market

The second part of the consultation focuses on ‘Limitations and exceptions in the Single Market’. Communia believes that adjusting the exceptions and limitations to copyright that are enshrined in the 2001 Copyright Directive to the requirements of the digital environment must be at the heart of any change of the European copyright rules. Again, we have a related policy recommendation that provides a good basis for addressing issues related to exceptions and limitations:

Recommendation #3: Harmonize Exceptions and Limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to the ongoing technological transformations.

It is good to see that the consultation contains questions related to all aspects of this recommendation (harmonisation, need for new exceptions and limitations, and need for more flexibility).

The rest of the section on limitations and exceptions touches on specific types of uses/users benefiting from exceptions and limitations. In the first four cases (access to content in libraries and archives, teaching, research, and users with disabilities) the Commission wants to know if the relevant exceptions and limitations continue to achieve the objectives envisaged or whether they need to be updated to cover use in digital networks. The consultation also identifies 2 types of use (Text and data mining and so-called ‘User-generated content’) that might benefit from new exceptions.

Again some of the Communia policy recommendations are relevant here and can provide guidance when answering the questions related to education and memory institutions:

Recommendation #10: Memory Institutions must be enabled to fulfill their traditional function in the online environment. In order to be able to provide access to knowledge and culture they must benefit from compulsory and harmonized exceptions and limitations that allow them to make their collections available online for non commercial purposes.

Recommendation #12: Access to copyright protected works for education and research purposes must be facilitated by strengthening existing exceptions and limitations and broadening them to cover uses outside of formal educational institutions. All publicly funded research output and educational resources must be made available as open access materials.

Other Questions

Among the remaining questions, those in the sections on ‘A single EU Copyright Title’ and ‘Respect for Rights’ are the most noteworthy.

It is refreshing to see the Commission devote a section on the idea of a single European copyright title. The idea of having a unified EU Copyright Title that would totally harmonise the area of copyright law in the EU and replace national laws has been part of academic discussion about copyright in Europe for quite some time (see here for a recent proposal).

On the other hand, ‘Respect for Rights’ is a thinly veiled euphemism for enforcement of rights. Contrary to what the consultation suggests, respect is not created by enforcement but by establishing rules that are perceived as fair and balanced by as many stakeholders as possible. With this in mind the most effective way to improve ‘respect for rights’ would be to take user concerns seriously when addressing the other issues identified throughout the entire consultation.

Instead, the Commission has added a question that is explicitly aimed at inviting answers promoting stronger liability of intermediaries for copyright infringement by third parties:

In particular, is the current legal framework clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose? If not, what measures would be useful to foster the cooperation of intermediaries?

This is the exact same proposal that was rejected by a broad coalition that brought down the SOPA/PIPA legislative proposals in the US earlier this year. It was also one of the most contentious issues in ACTA, which ultimately was rejected by the European Union. It is sad to see the Commission promoting this approach in the context of this otherwise reasonable consultation.

Next steps

It is somewhat unclear what will happen to the outcomes of the public consultation. Given that next year is an election year it is rather unrealistic that they will feed directly into a legislative proposal for a new or updated EU copyright directive. At best, we hope that the current Commission will provide the next one with a clear and precise roadmap for copyright reform – which we hope will be in line with our recommendations.

But regardless of the likelihood of immediate outcomes, it is important that stakeholders who are in favor of meaningful copyright reform make themselves heard by providing their perspectives. Communia will work with a broad coalition of other organisations on ensuring broad feedback from across all affected sectors. As part of this we expect to publish a more detailed answering guide at the beginning of next year.

[Semi]Commons Coordinations & Copyright Choices 4.0

Mike Linksvayer, December 10, 2013 03:52 AM   License: CC0 1.0 Universal

CC0 is superior to any of the Creative Commons (CC) 4.0 licenses, because CC0 represents a superior policy (public domain). But if you’re unable or unwilling to upgrade to CC0, the CC 4.0 licenses are a great improvement over the 3.0 licenses. The people who did the work, led by Diane Peters (who also led CC0), many CC affiliates (several of whom were also crucial in making CC0 a success), and Sarah Pearson and Kat Walsh, deserve much praise. Bravo!

Below read my idiosyncratic take on issues addressed and not addressed in the 4.0 licenses. If that sounds insufferable, but you want to know about details of the 4.0 licenses, skip to the excellent version 4 and license versions pages on the CC wiki. I don’t bother linking to sections of those pages pertinent to issues below, but if you want detailed background beyond my idiosyncratic take on each issue, it can be found there.

Any criticism I have of the 4.0 licenses concerns policy choices and is not a criticism of the work done or people involved, other than myself. I fully understand that the feasible choices were and are highly constrained by previous choices and conditions, including previous versions of the CC licenses, CC’s organizational history, users of CC licenses, and the overall states of knowledge commons and info regulation and CC’s various positions within these. I always want CC and other “open” organizations to take as pro-commons of a stance as possible, and generally judge what is possible to be further than that of the conventional wisdom of people who pay any attention to this scene. Sometimes I advocated for more substantial policy changes in the 4.0 licenses, though just as often I deemed such advocacy futile. At this point I should explain that I worked for CC until just after the 4.0 licenses process started, and have consulted a bit on 4.0 licenses issues since then as a “fellow”. Not many people were in a better position to influence the 4.0 licenses, so any criticisms I have are due to my failure to convince, or perhaps incorrect decision to not try in some cases. As I’ve always noted on this blog, I don’t represent any organization here.


Pro-commons? As opposed to what? The title of the CC blog post announcing the formal beginning of work on the new licenses:

Copyright Experts Discuss CC License Version 4.0 at the Global Summit

My personal blog post:

Commons experts to develop version 4.0 of the CC licenses

The expertise that CC and similar organizations ought to bring to the world is commons coordination. There are many copyright experts in the world, and understanding public copyright licenses, and drafting more, are no great intellectual challenges. The copyright expertise needed to do so ought be purely instrumental, serving the purpose of commons coordination. Or so I think.

Throughout CC’s existence, it has presented itself, and been perceived as, to varying extents, an organization which provides tools for copyright holders to exercise their copyrights, and an organization which provides tools for building a commons. (What it does beyond providing tools adds another dimension, not unrelated to “copyright choice” vs. “commons coordination”; there’s some discussion of these issues in a video included in my personal post above.)

I won’t explain in this post, but I think the trend through most of CC’s history has been very slow movement in the “commons coordination” direction, and the explicit objectives of the 4.0 versioning process fit that crawl.

“Commons coordination” does not directly imply the usual free/open vs. proprietary/closed dichotomy. I think it does mostly fall out that way, in small part due to “license interoperability” practicalities, but probably mostly because I think the ideal universal copyregulation policy corresponds to the non-discriminatory commons that “free/open” terms and communities carve out on a small scale, including the pro-sharing policy that copyleft prototypes, and excluding any role for knowledge enclosure, monopoly, property, etc. But it is certainly possible, indeed usual, to advocate for a mixed regime (I enjoy the relatively new term “semicommons”, but if you wish to see it everywhere, try every non-demagogic call for “balance”), in which case [semi]commons tools reserving substantial exclusivity (e.g., “commercial use”) make perfect sense for [semi]commons coordination.

Continuing to ignore the usual [non-]open dichotomy, I think there still are a number of broad criteria for would-be stewards of any new commons coordinating license (and make no mistake, a new version of a license is a new license; CC introduced 6 new licenses with 4.0) to consider carefully, and which inform my commentary below:

  • Differentiation: does the new license implement some policy not currently available in existing licenses, or at least offer a great improvement in implementation (not to provide excuses for new licenses, but the legal text is just one part of implementation; also consider branding/positioning, understandability, and stewardship) of policy already available?
  • Permissions: does the new license grant all permissions needed to realize its policy objective?
  • Regulation: how does the license’s policy objective model regulation that ought be adopted at a wider scale, e.g., how does it align with usual “user rights” and “copyright reform” proposals?
  • Interoperability: is the new license maximally compatible with existing licenses, given the constraints of its policy objectives, and indeed, to the expense of its immediate policy objectives, given that incompatibility, non-interoperability, and proliferation must fragment and diminish the value of commons?
  • Cross-domain impact: how does the license impact license interoperability and knowledge sharing across fields/domains/communities (e.g., software, data, hardware, “content”, research, government, education, culture…)? Does it further silo existing domains, a tragedy given the paucity of knowledge about governing commons in the world, or facilitate sharing and collaboration across domains?

Several of these are merely a matter of good product design and targeting, and would also apply to an organization that really had a primary goal of offering copyright holders additional choices the organization deems are under-provided. I suspect there is plenty of room for innovation in “copyright choice” tools, but I won’t say more in this post, as such have little to do with commons, and whatever CC’s history of copyright choice rhetoric and offering a gaggle of choices, creating such tools is distant from its immediate expertise (other than just knowing lots about copyright) and light years from much of its extended community.

Why bother?

Apart from amusing myself and a few others, why this writeup? The CC 4.0 licenses won’t change, and hopefully there won’t be CC 4.1 or 4.5 or 5.0 licenses for many years. Longevity was an explicit goal for 4.0 (cf. 1.0: 17 months, 2.0: 12 months; 2.5: 20 months; 3.0: 81 months). Still, some of the issues covered here may be interesting to people choosing to use one of the CC 4.0 licenses, and people creating other licenses. Although nobody wants more licenses, often called license proliferation, as an end in itself, many more licenses is the long term trend, of which the entire history of CC is just a part. Further, more licenses can be a good, to the extent they are significantly different from and better than, and as compatible as possible with, existing licenses.

To be totally clear: many new licenses will be created and used over the next 10 years, intended for various domains. I would hope, some for all domains. Proliferators, take heed!

Development tools

A 4.0 wiki page and a bunch of pages under that were used to lay out objectives, issues and options for resolution, and link to drafts. Public discussion was on the cc-licenses list, with tangential debate pushed to cc-community. Drafts and changes from previous drafts were published as redlined word processor files. This all seems to have worked fairly well. I’d prefer drafts as plain text files in a git repository, and an issue tracker, in addition to a mailing list. But that’s a substantially different workflow, and word processor documents with track changes and inline comments do have advantages, not limited to lawyers being familiar with those tools.

100% wiki would also work, with different tradeoffs. In the future additional tools around source repositories, or wikis, or wikis in source repositories, will finally displace word processor documents, but the tools aren’t there yet. Or in the bad future, all licenses will be drafted in word processors in the cloud.

(If it seems that I’m leaving a a lot out, e.g., methodology for gathering requirements and feedback, in-person and teleconferences, etc., I merely have nothing remotely interesting to say, and used “tools” rather than “process” to narrow scope intentionally.)


The 4.0 licenses were drafted to be jurisdiction neutral, and there will be official, equivalent, verbatim language translations of the licenses (the same as CC0, though I don’t think any translations have been made final yet). Legal “porting” to individual jurisdictions is not completely ruled out, but I hope there will be none. This is a wholly positive outcome, and probably the most impactful change for CC itself (already playing out over the past few years, e.g., in terms of scope and composition of CC affiliates), though it is of small direct consequence to most users.

Now, will other license drafters and would-be drafters follow CC’s lead and stop with the vanity jurisdiction license proliferation already?


At least the EU, Mexico, Russia, and South Korea have created “database rights” (there have been attempts in other jurisdictions), copyright-like mechanisms for entities that assemble databases to persecute others who would extract or copy substantial portions of said databases. Stupid policies that should be abolished, copyright-like indeed.

Except for CC0 and some minor and inconsistent exceptions (certain within-EU jurisdiction “port” versions), CC licenses prior to 4.0 have not “covered” database rights. This means, modulo any implied license which may or may not be interpreted as existing, that a prior-to-4.0 (e.g., CC-BY-3.0) licensee using a database subject to database restrictions (when this occurs is a complicated question) would have permission granted by the licensor around copyright restrictions, but not around database restrictions. This is a pretty big fail, considering that the first job of a public license is to grant adequate permissions. Actual responses to this problem:

  • Tell all database publishers to use CC0. I like this, because everyone should just use CC0. But, it is an inadequate response, as many will continue to use less permissive terms, often in the form of inadequate or incompatible licenses.
  • Only waive or license database restrictions in “ports” of licenses to jurisdictions in which database restrictions exist. This is wholly inadequate, as in the CC scheme, porting involves tailoring the legal language of a license to a jurisdiction, but there’s no guarantee a licensor or licensee in such jurisdictions will be releasing or using databases under one of these ports, and in fact that’s often not the case.
  • Have all licenses waive database restrictions. This sounds attractive, but is mostly confusing — it’s very hard to discern when only database and not copyright restrictions apply, such that a licensee could ignore a license’s conditions — and like “tell database publishers to use CC0″ would just lead many to use different licenses that do purport to conditionally license database rights.
  • Have all licenses grant permissions around database restrictions, under whatever conditions are present in the license, just like copyright.

I think the last is the right approach, and it’s the one taken with the CC 4.0 licenses, as well as by other licenses which would not exist but for CC 3.0 licenses not taking this approach. I’m even more pleased with their generality, because other copyright-like restrictions are to be expected (emphasis added):

Copyright and Similar Rights means copyright and/or similar rights closely related to copyright including, without limitation, performance, broadcast, sound recording, and Sui Generis Database Rights, without regard to how the rights are labeled or categorized. For purposes of this Public License, the rights specified in Section 2(b)(1)-(2) are not Copyright and Similar Rights.

The exclusions of 2(b)(1)-(2) are a mixed bag; see moral and personality rights, and patents below.

CC0 also includes a definition with some generality:

Copyright and Related Rights include, but are not limited to, the following:

  1. the right to reproduce, adapt, distribute, perform,
    display, communicate, and translate a Work;
  2. moral rights retained by the original author(s) and/or
  3. publicity and privacy rights pertaining to a person’s
    image or likeness depicted in a Work;
  4. rights protecting against unfair competition in regards
    to a Work, subject to the limitations in paragraph 4(a),
  5. rights protecting the extraction, dissemination, use and
    reuse of data in a Work;
  6. database rights (such as those arising under Directive
    96/9/EC of the European Parliament and of the Council of 11
    March 1996 on the legal protection of databases, and under
    any national implementation thereof, including any amended
    or successor version of such directive); and
  7. other similar, equivalent or corresponding rights
    throughout the world based on applicable law or treaty, and
    any national implementations thereof.

As does GPLv3:

“Copyright” also means copyright-like laws that apply to other kinds of works, such as semiconductor masks.

Do CC0 and CC 4.0 licenses cover semiconductor mask restrictions (best not to use for this purpose anyway, see patents)? Does GPLv3 cover database restrictions? I’d hope the answer is yes in each case, and if the answer is no or ambiguous, future licenses further improve on the generality of restrictions around which permissions are granted.

There is one risk in licensing everything possible, and culturally it seems, specifically in licensing database rights — the impression that licensee which do so ‘create obligations’ related to those rights. I find this an odd way to think of a conditional permission as the creation of an obligation, when the user’s situation without said permission is unambiguously worse, i.e., no permission. Further, this impression is a problem for non-maximally-permissive licenses around copyright, not only database or other copyright-like rights.

In my opinion the best a public license can do is to grant permissions (conditionally, if not a maximally permissive license) around restrictions with as much generality as possible, and expressly state that a license is not needed (and therefore conditions to not apply) if a user can ignore underlying restrictions for some other reason. Can the approach of CC version 4.0 licenses to the latter be improved?

For the avoidance of doubt, where Exceptions and Limitations apply to Your use, this Public License does not apply, and You do not need to comply with its terms and conditions.

These are all trivialities for license nerds. For publishers and users of databases: Data is free. Free the data!

Moral and personality rights

CC 4.0 licenses address them well:

Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.

To understand just how well, CC 3.0 licenses say:

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author’s honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.

Patents and trademark

Prior versions were silent, CC 4.0 licenses state:

Patent and trademark rights are not licensed under this Public License.

Perhaps some potential licensor will be reassured, but I consider this unnecessary and slightly harmful, replicating the main deficiency of CC0. The explicit exclusion makes it harder to see an implied license. This is especially troublesome when CC licenses are used in fields in which patents can serve as a barrier. Software is one, for which CC has long disrecommended use of CC licenses largely because software is already well-covered by licenses with which CC licenses are mostly incompatible with; the explicit patent exclusion in the CC 4.0 licenses makes them even less suitable. Hardware design is another such field, but one with fragmented licensing, including use of CC licenses. CC should now explicitly disrecommend using CC licenses for hardware designs and declare CC-BY-SA-4.0 one-way compatible with GPLv3+ so that projects using one of the CC-BY-SA licenses for hardware designs have a clear path to a more appropriate license.

Patents of course can be licensed separately, and as I pointed out before regarding CC0, there could be curious arrangements for projects using such licenses with patent exclusions, such as only accepting contributions from Defensive Patent License users. But the better route for “open hardware” projects and the like to take advantage of this complementarity is to do both, that is use a copyright and related rights license that includes a patent peace clause, and join the DPL club.


CC 4.0 licenses:

The Licensor waives and/or agrees not to assert any right or authority to forbid You from making technical modifications necessary to exercise the Licensed Rights, including technical modifications necessary to circumvent Effective Technological Measures.

This is a nice addition, which had been previously suggested for CC 3.0 licenses and rejected — the concept copied from GPLv3 drafts at the time. I would have preferred to also remove the limited DRM prohibition in the CC licenses.


The CC 4.0 licenses slightly streamline and clarify the substance of the attribution requirement, all to the good. The most important bit, itself only a slight streamlining and clarification of similar in previous versions:

You may satisfy the conditions in Section 3(a)(1) in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information.

This pulls in the wild use from near zero to-the-letter compliance to fairly high.

I’m not fond of the requirement to remove attribution information if requested by the licensor, especially accurate information. I don’t know whether a licensor has ever made such a request, but that makes the clause only pointless rather than harmful. Not quite though, as it does make for a talking point.


not primarily intended for or directed towards commercial advantage or private monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

Not intended to be a substantive change, but I’ll take it. I’d have preferred a probably more significantly narrowed definition and a re-branding so as to increase the range of and differentiation among the licenses that CC stewards. But at the beginning of the 4.0 licenses process, I expected no progress, so am not disappointed. Branding and other positioning changes could come post-launch, if anyone is so inclined.

I think the biggest failure of the range of licenses with an NC term (and there are many preceding CC) is not confusion and pollution of commons, very roughly the complaints of people who would like NC to have a more predictable meaning and those who think NC offers inadequate permissions, respectively, but lack of valuable use. Licenses with the NC term are certainly used for hundreds of millions of photos and web pages, and some (hundreds of?) thousands of songs, videos, and books, but few where either the licensor or the public gains significant value above what would have been achieved if the licensor had simply offered gratis access (i.e., put stuff on the web, which is incredibly valuable even with no permissions granted). As far as I know, NC licenses haven’t played a significant role in enabling (again, relative to gratis access) any disruptive product or policy, and their use by widely recognized artists and brands is negligible (cf. CC-BY-SA, which Wikipedia and other mass collaboration projects rely on to exist, and CC-BY and CC0, which are part of disruptive policy mandates).

CC is understandably somewhat stuck between free/open norms, which make licenses with the NC an embarrassment, and their numerically large but low value uses. A license steward or would-be steward that really believed a semicommons license regime could do much more would try to break out of this rut by doing a complete rethink of the product (or that part of the product line), probably resulting in something much more different from the current NC implementation than the mere definitional narrowing and rebranding that I started out preferring. This could be related to my commentary on innovation in “copyright choice” tools above; whether the two are really the same thing would be a subject for inquiry.


If there were licenses that should not have been brought to version 4.0, at least not under the CC brand, it would have been CC-BY-NC-ND and CC-BY-ND.

Instead, an express permission to make derivatives so long as they are not shared was added. This change makes so-called text/content/data mining of any work under any of the CC version 4.0 licenses unambiguously permitted, and makes ND stick out a tiny bit less as an aberration from the CC license suite modeling some moderate copyright reform baseline.

There are some costs to this approach: surprise that a “no derivatives” license permits derivatives, slight reduction in scope and differentiation among licenses that CC stewards, giving credence to ND licenses as acceptable for scholarship, and abetting the impression that text/content/data mining requires permission at all. The last is most worrisome, but (as with similar worries around licensing databases) can be turned into a positive to the extent CC and everyone knowledgeable emphasizes that you ought not and probably don’t need a license; we’re just making sure you have the freedoms around CC licensed works that you ought to have anyway, in case the info regulation regime gets even worse — but please, mine away.


This is the most improved named (BY/NC/ND/SA) elements in CC 4.0 licenses, and the work is not done yet. But first, I wish it had been improved even more, by making more uses unambiguously “trigger” the SA provision. This has been done once, starting in 2.0:

For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered a Derivative Work for the purpose of this License.

The obvious next expansion would have been use of images (still or moving) in contextual relation to other material, eg illustrations used in a text. Without this expansion, CC-BY-SA and CC-BY-NC-SA are essentially identical to CC-BY and CC-BY-NC respectively for the vast majority of actual “reuse” instances. Such an expansion would have substantially increased the range of and differentiation among licenses that CC stewards. The main problem with such an expansion (apart from specifying it exactly) would be increasing the cost of incompatibility, where texts and images use different licenses. This problem would be mitigated by increasing compatibility among copyleft licenses (below), or could be eliminated by broadening the SA licensing requirement for uses triggered by expansion, eg any terms granting at least equivalent permissions, such that a CC-BY-SA illustration could still be used in a text licensed under CC-BY or CC0. Such an expansion did not make the cut, but I think together with aforementioned broadening of licensing requirements, such a modulation (neither strictly “stronger” nor “weaker”) would make for an interesting and heretofore unimplemented approach to copyleft, in some future license.

Apart from a subtle improvement that brings SA closer to a full “or later versions” license, and reflects usual practice and understanding (incidentally, “no sublicensing” in non-SA licenses remains pointless, is not to be found in most non-CC permissive licenses, and should not be replicated), the big improvements in CC 4.0 licenses with the SA element are the addition of the potential for one-way compatibility to CC-BY-SA, adding the same compatibility mechanism to CC-BY-NC-SA, and discussions with stewards of potentially compatible licenses which make the realization of compatibility more likely. (I would have included a variation on the more complex but in my view elegant and politically advisable mechanism introduced in MPL 2.0, which allows for continued use under the donor compatible license as long as possible. Nobody demanded such, so not adding the complexity was perhaps a good thing.)

I hope that in 2014 CC-BY-SA-4.0 will be declared bilaterally compatible with the Free Art License 1.3, or if a new FAL version is required, it is being worked on, with achieving bilateral compatibility as a hard requirement, and more importantly, that CC-BY-SA-4.0 is declared one-way compatible (as a donor) with GPLv3+. An immediate step toward those ends will be finalizing an additional statement of intent regarding the stewardship of licenses with the ShareAlike element.

Though I’ll be surprised if any license appears as a candidate for compatibility with CC-BY-NC-SA-4.0, adding the mechanism to that license is a good thing: as a matter of general license stewardship, reducing the barriers to someone else creating a better NC license (see above), and keeping “porting” completely outside the 4.0 license texts (hopefully there will be no porting, but if there is any, compatibility with the international versions in licenses with the SA element would be exclusively via the compatibility mechanism used for any potentially compatible license).


All license clauses have id attributes, allowing direct linking to a particular clause. These direct links are used for references within the licenses. These are big usability improvements.

I would have liked to see an expansive “tech” (including to some extent design) effort synchronized with the 4.0 licenses, from the practical (e.g., a canonical format for license texts, from which HTML, plain text, and others are generated; that may be HTML, but the current license HTML is inadequate for the task) to the impractical (except for increasing CC’s reputation, e.g., investigating whether any semantic annotation and structure, preferably building on existing research, would be useful, in theory, for the license texts, and possibly even a practical aid to translation), to testing further upgrades to the ‘legal user interface’ constituted by the license texts and “deed” summaries (e.g., combining these), to just bringing various CC tooling and documentation up to date with RDFa 1.1 Lite. But, some of these things could be done post-launch if anyone is so inclined, and my understanding is that CC has only a single technology person on staff, dedicated to creating other products, and most importantly, the ability to directly link to any license clause probably has more practical benefits than anything on my wishlist.


One of the best things about the CC 4.0 licenses is their increased understandability. This is corroborated by crude automated readability metrics below, but I suspect these do not adequately characterize the improvement, for they include three paragraphs of explanatory text not present in previous versions, probably don’t fully reflect the improvement of splitting hairball paragraphs into lists, and have no mechanism for accounting for how the improved usability of linking to individual clauses contributes to understandability.

CC-BY-NC-SA (the license with the most stuff in it, usually used as a drafting template for others) from version 1.0 through 4.0, including 4.0 drafts (lower numbers indicate better readability, except in the case of Flesch; Chars/(Flesch>=1) is my gross metric for how painful it is to read a document; see license automated readability metrics for an explanation):

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
39b2ef67be9e5b4e743e5269a31ad1691515eede CC-BY-NC-SA-1.0 10228 13.3 16.3 14.2 17.0 59.7 14.2 48.4 211
5800ac2d32e35ace035cdcae693423cd9ff5bb6f CC-BY-NC-SA-2.0 11927 13.3 16.2 14.7 17.1 60.0 14.4 47.0 253
e5f44c2df6b1391d1ddb6efb2db6f90670e4ae67 CC-BY-NC-SA-2.5 12013 13.1 16.0 14.6 16.9 59.6 14.2 47.7 251
a63b7e81e7b9e30df5d253aed1d2991af47992df CC-BY-NC-SA-3.0 17134 16.4 19.7 14.2 20.6 67.0 16.3 38.8 441
8b36c30ed0510d9ca9c69a2ef826b9fd52992474 by-nc-sa-4.0d1 12465 13.0 15.0 14.9 16.3 57.4 14.0 43.9 283
4a87c7af5cde7729e2e456ee0e8958f8632e3005 by-nc-sa-4.0d2 11583 13.1 14.8 14.2 16.8 56.2 14.4 44.7 259
bb6f239f7b39343d62440bff00de24da2b3d256f by-nc-sa-4.0d3 14422 14.1 15.8 15.1 18.2 61.0 15.4 38.6 373
cf5629ae38a745f4f9eca429f7b26af2e71eb109 by-nc-sa-4.0d4 14635 13.8 15.6 15.5 17.8 60.2 15.2 38.6 379
a5e1b9829fd287cbe255df71eb9a5aad7fb19dbc by-nc-sa-4.0d4v2 14808 14.0 15.8 15.5 18.0 60.6 15.2 38.1 388
887f9a5da675cf681421eab3ac6d61f82cf34971 CC-BY-NC-SA-4.0 14577 13.1 14.7 15.7 17.1 58.6 14.7 40.1 363

Versions 1.0 through 4.0 of each of the six CC licenses brought to version 4.0, and CC0:

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
74286ae0dfea38c489437bf659b209737945145c CC0-1.0 5116 16.2 19.5 15.0 19.5 66.3 15.6 36.8 139
c766cc6d5e63277e46a3d83c6254e3528082587b CC-BY-1.0 8867 12.6 15.5 14.1 16.4 57.8 13.8 51.3 172
bf23729bec8ffd0de4d319fb33395c595c5c762b CC-BY-2.0 9781 12.1 14.9 14.3 16.1 56.7 13.7 51.9 188
024bb6d37d0a17624cf532bd14fbd42e15c5a963 CC-BY-2.5 9867 11.9 14.7 14.2 15.8 56.3 13.6 52.6 187
20dc61b94cfe1f4ba5814b340095b4c3fa23e801 CC-BY-3.0 14956 16.1 19.4 14.1 20.4 66.1 16.2 40.0 373
00b29551deee9ced874ffb9d29379b92f1487045 CC-BY-4.0 13003 13.0 14.5 15.4 16.9 57.9 14.6 41.1 316
e0c4b13ec5f9b5702d2e8b88d98b803e07d65cf8 CC-BY-NC-1.0 9313 13.2 16.2 14.3 17.0 59.3 14.1 49.3 188
970421995789d2e8189bb12071ab838a3fcf2a1a CC-BY-NC-2.0 10635 13.1 16.1 14.6 17.2 59.5 14.4 48.1 221
08773bb9bc13959c6f00fd49fcc081d69bda2744 CC-BY-NC-2.5 10721 12.9 15.8 14.5 16.9 59.0 14.2 48.9 219
9639556280637272ace081949f2a95f9153c0461 CC-BY-NC-3.0 15732 16.5 19.9 14.1 20.8 67.2 16.4 38.7 406
afcbb9791897e1e2f949d9d56ba64164746e0828 CC-BY-NC-4.0 13520 13.2 14.8 15.6 17.2 58.6 14.8 39.8 339
9ab2a3818e6ccefbc6ffdd48df7ecaec25e32e41 CC-BY-NC-ND-1.0 8729 12.7 15.8 14.4 16.4 58.6 13.8 51.0 171
966c97357e3b529e9c8bb8166fbb871c5bc31211 CC-BY-NC-ND-2.0 10074 13.0 16.1 14.7 17.0 59.7 14.3 48.8 206
c659a0e3a5ee8eba94aec903abdef85af353f11f CC-BY-NC-ND-2.5 10176 12.8 15.9 14.6 16.8 59.2 14.2 49.3 206
ad4d3e6d1fb6f89bbd28a44e263a89430b575dfa CC-BY-NC-ND-3.0 14356 16.3 19.7 14.1 20.5 66.8 16.2 39.7 361
68960bdf512ff5219909f932b8a81fdb255b4642 CC-BY-NC-ND-4.0 13350 13.3 14.8 15.7 17.2 58.4 14.8 39.4 338
39b2ef67be9e5b4e743e5269a31ad1691515eede CC-BY-NC-SA-1.0 10228 13.3 16.3 14.2 17.0 59.7 14.2 48.4 211
5800ac2d32e35ace035cdcae693423cd9ff5bb6f CC-BY-NC-SA-2.0 11927 13.3 16.2 14.7 17.1 60.0 14.4 47.0 253
e5f44c2df6b1391d1ddb6efb2db6f90670e4ae67 CC-BY-NC-SA-2.5 12013 13.1 16.0 14.6 16.9 59.6 14.2 47.7 251
a63b7e81e7b9e30df5d253aed1d2991af47992df CC-BY-NC-SA-3.0 17134 16.4 19.7 14.2 20.6 67.0 16.3 38.8 441
887f9a5da675cf681421eab3ac6d61f82cf34971 CC-BY-NC-SA-4.0 14577 13.1 14.7 15.7 17.1 58.6 14.7 40.1 363
e4851120f7e75e55b82a2c007ed98ffc962f5fa9 CC-BY-ND-1.0 8280 12.3 15.5 14.3 16.1 57.9 13.6 52.4 158
f1aa9011714f0f91005b4c9eb839bdb2b4760bad CC-BY-ND-2.0 9228 11.9 14.9 14.5 15.8 56.9 13.5 52.7 175
5f665a8d7ac1b8fbf6b9af6fa5d53cecb05a1bd3 CC-BY-ND-2.5 9330 11.8 14.7 14.4 15.6 56.5 13.4 53.2 175
3fb39a1e46419e83c99e4c9b6731268cbd1591cd CC-BY-ND-3.0 13591 15.8 19.2 14.1 20.0 65.6 15.9 41.2 329
ac747a640273815cf3a431be0afe4ec5620493e3 CC-BY-ND-4.0 12830 13.0 14.4 15.4 16.9 57.6 14.6 40.7 315
dda55573a1a3a80d294b1bb9e1eeb3a6c722968c CC-BY-SA-1.0 9779 13.1 16.1 14.2 16.8 59.1 14.0 49.5 197
9cceb80d865e52462983a441904ef037cf3a4576 CC-BY-SA-2.0 11044 12.5 15.3 14.4 16.2 57.9 13.8 50.2 220
662ca9fce7fed61439fcbc27ca0d6db0885718d9 CC-BY-SA-2.5 11130 12.3 15.0 14.4 16.0 57.5 13.6 50.9 218
4a5bb64814336fb26a9e5d36f22896ce4d66f5e0 CC-BY-SA-3.0 17013 16.4 19.8 14.1 20.5 67.2 16.2 38.9 437
8632363dcc2c9fc44f582b14274259b3a35744b2 CC-BY-SA-4.0 14041 12.9 14.4 15.4 16.8 57.8 14.5 41.4 339

It’s good for automated readability metrics that from 3.0 to 4.0 CC-BY-SA is most improved (the relevant clause was a hairball paragraph; CC-BY-NC-SA should have improved less, as it gained the compatibility mechanism) and CC-BY-ND is least improved (it gained express permission for private adaptations).


I leave a list of recommendations (many already mingled in or implied by above) to a future post. But really, just use CC0.

Weil wir das Netz lieben. Creative Commons.

Markus Beckedahl, December 03, 2013 01:17 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Das “D64 – Zentrum für Digitalen Fortschritt” hat mit “Weil wir das Netz lieben. Creative Commons.” eine kleine Kampagne zur Bekanntmachung von Creative Commons Lizenzen gestartet. Für drei Bereiche wird eine Nutzung der freien und offenen Lizenzen gefordert:

- Creative Commons muss im öffentlichen Sektor zur Regel werden
- GEMA & Co sollen ihren Mitgliedern Creative Commons ermöglichen
- Plattformbetreiber sollen Creative Commons implementieren


Inhaltlich steckt unser Leonhard Dobusch dahinter. Die netten Katzen-Banner hat Nico Roicke erstellt.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Creative Commons Licenses 4.0

Michael Carroll, November 30, 2013 04:39 PM   License: Attribution 2.5 Generic

After a significant international public consultation process spanning two years, Creative Commons has released Version 4.0 of the Creative Commons licenses.  This effort, led by Creative Commons General Counsel Diane Peters, and the CC legal team of Sarah Hinchliff Pearson and Kat Walsh, with significant engagement and input from the fantastic Creative Commons Affiliate community has produced a robust and elegant license suite that should serve the commons well for years into the future.

For details of what's new and why, I think Diane says it well here.

This is just a heartfelt thank you to Diane, Sarah, Kat, and to all of the affiliates and Creative Commons supporters who gave so generously of their intelligence, legal expertise, and good common sense to make the improvements we now have.  Working with this community of talented, dedicated lawyers who have kept the public interest at the forefront of their thinking has been among the greatest professional pleasures I have been privileged to enjoy.

Congratulations! ¡Felicitaciones! 御目出度う!Parabéns!  Herzlichen Glückwunsch!  تهانينا!
Gefeliciteerd! 恭喜Felicitacions! 축하합니다! Binabati kita! Félicitations! बधाई हो! Grattis! מזל טוב! Tillykke! Baie geluk! Hongera! Congratulazioni! مبارک ہو! Gratulerer! ขอแสดงความยินดี 
Gratulacje! Tebrikler! Συγχαρητήρια! Selamat! Til hamingju! Поздравляем! Շնորհավորում եմ!
Čestitamo! Onneksi olkoon! Gratulálunk! Xin chúc mừng! Blahopřejeme! Palju õnne! অভিনন্দন!
Вітаємо! Apsveicam! សូមអបអរសាទរ! გილოცავთ! Честито на печелившите! تبریک می گویم
Blahoželáme! Tahniah! ຊົມເຊີຍ! Vobis congratulor! अभिनंदन! Felicitări! Təbrik edirik! வாழ்த்துக்கள்!
Prosit! Алал да му е! Sveikiname! అభినందనలు! Ngiyakuhalalisela! Ndiyavuyisana nawe!
Kuttyktaimyn! Баяр хvргэе Asengamhlophe! Vadaiyaan! E ku ori ire! Imelu Nke Oma! Arahabaina! Comhghairdeas!

Upgrade to CC-BY(-(NC(-(ND|SA))?|ND|SA))?-4\.0

Mike Linksvayer, November 26, 2013 07:25 AM   License: CC0 1.0 Universal

Today Creative Commons released version 4.0 of six* of its licenses, with many improvements over version 3.0, after more than two years of work. I’ll write more about those details later. But you should skip right past 4.0 and upgrade to CC’s premier legal product, CC0. This is the case whether you’re looking to adopt a CC license for the first time, or to upgrade from version 1.0, 2.0, 2.1, 2.5, or 3.0.

Let’s review the named conditions present in some or all of the CC 4.0 licenses, and why unconditional CC0 is better.

Don’t forget unmitigated © in the basement.

Attribution (BY). Do not take part in the debasement of attribution, and more broadly, provenance, already useful to readers, communities of practice, and publishers, by making them seem mere objects of copyright license compliance. If attribution is useful, it will be provided. If not, robots will find out. Rarely does anyone comply with the exact legal requirements of the attribution term anyway, and as a licensor, you probably won’t provide the information needed by licensees to easily comply. Plus, the corresponding icon looks like a men’s bathroom sign.

NonCommercial (NC). Sounds nice, but nobody knows what it means. Perhaps this goes some way to explaining why NC licensed works are often used by for-profit entities, including with advertising, while NC licensed works are verboten for many community and non-profit projects, most prominently Wikipedia and other Wikimedia projects. (Because commercial entities know there is very low risk of being sued for non-compliance, and can manage risk, while community projects tend to draw and follow bright lines. Perhaps community projects ought to be able to manage risk, and that they can’t is a demonstration of their relative lack of institutional sophistication…but that’s another topic!)

NoDerivatives (ND). This term has no business being in the “Creative Commons” license suite, but sadly still is. If you don’t want to contribute to a creative commons, don’t. If you’d like to, but think copyright (through withholding permission to share adaptations, i.e., the ND term) will prevent people from misrepresenting you, you’re wrong, committing an act of hate toward free speech, and undermining the potential of voluntary license practice to align with and support an obvious baseline objective for copyright reform: noncommercial sharing and remix should always be legal.

ShareAlike (SA). Also sounds nice, and I am a frequent apologist and sometime advocate for the underlying idea, copyleft. But SA is a weak implementation of copyleft. It isn’t “triggered” by the most common use of CC-licensed material (contextual illustration, not full remix), and it has no regulatory condition not present in non-SA CC licenses (cf GPL, which requires sharing source for a work, and is usable for any work; if you care about copyleft, tell CC to finish making CC-BY-SA one-way compatible with GPL). And the SA implementation retains the costs of copyleft: blank stares of incomprehension, even from people who have worked in the “open” world for over a decade, and occasionally intense fear and dislike (the balance is a bit different in the software world, but this is my direct experience among non-software putatively open organizations and people); also, compatibility problems. It’s time to take the unsolicited advice often given to incumbents and others fearful of the internet: ‘obscurity is a greater threat than piracy’ — and apply it: ‘obscurity is a greater threat than proprietarization.’

Upgrade to CC0!

CC0 isn’t perfect, but it is by far the best tool provided by CC. I have zero insight into the future of the CC organization, but I hope it gives ample priority to the public domain, post-4.0 launch.

*CC-BY(-(NC(-(ND|SA))?|ND|SA))?-4\.0 is a regular expression matching all six licenses released today.

Responding to the European Commission consultation on PSI: Minimizing restrictions maximizes re-use

Communia Association, November 25, 2013 05:21 PM   License: CC0 1.0 Universal

The Communia Association has responded to the European Commission’s consultation on recommended standard licenses, datasets and charging for the re-use of public sector information (PSI). The Commission asked for comments on these issues in light of the adoption of the new Directive on re-use of public sector information. See our response here. The Directive 1) brings libraries, museums, and archives under the scope of the Directive, 2) provides a positive re-use right to public documents, 3) limits acceptable charging to only marginal costs of reproduction, provision, and dissemination, and 4) reiterates the position that documents can be made available for re-use under open standards and using machine readable formats. Communia recognizes the high value of PSI not only for innovation and transparency, but also for scientific, educational and cultural benefit for the entire society.

We have been providing feedback to the Commission during this process. We last wrote about the Directive in June, and questioned why the Commission had not yet clarified what should be considered a “standard license” for re-use (Article 8). The dangers of license proliferation–which potentially leads to incompatible PSI–is still present. But it’s positive that the Commission is using this consultation to ask specific questions regarding legal aspects of re-use.

Part 3 of the questionnaire deals with licensing issues. One question asks what should be the default option for communicating re-use rights. We believe that there should be no conditions attached to the re-use of public sector information. The best case scenario would be for public sector information to be in the public domain. If it’s not possible to pass laws granting positive re-use rights to PSI without copyright attached, public sector bodies should use the CC0 Public Domain Dedication (CC0) to place public data into as close as possible to the public domain to ensure unrestricted re-use.

Communia calls on the Commission and Member States to ensure that core datasets are released for maximum re-use, either by exempting PSI from copyright and sui generis database rights altogether, or by requiring that these rights are waived under the CC0 Public Domain Dedication.

Another question first states that the Commission prefers the least restrictive re-use regime possible, and asks respondents to choose which condition(s) would be aligned with this goal. Again, we think that every condition would be deemed restrictive, since the best case scenario would be for PSI to be removed from the purview of copyright protection through law or complete dedication of the PSI to the public domain using CC0.

Some conditions would be particularly detrimental to interoperability of PSI. An obligation not to distort the original meaning or message of public sector data should be deemed unacceptable. Such an obligation destroys compatibility with standard public licenses that uniformly do not contain such a condition. The UK’s Open Government License has already removed this problematic provision when it upgraded from OGL 1.0 to OGL 2.0. Any condition that attempts to discriminate based on the type of use or user, or imposes additional requirements on the re-user, should be avoided. Examples include: 1) fees for cost recovery, 2) prohibitions on commercial use, modifications, distortion, or redistribution, and 3) unreasonable attribution requirements. Copyleft conditions can threaten interoperability with existing “attribution-only” standard licenses.

In addition to mentioning CC licensing as a common solution, the questionnaire notes, “several Member States have developed national licenses for re-use of public sector data. In parallel, public sector bodies at all levels sometimes resort to homegrown licensing conditions.” In order to achieve the goals of the Directive and “to promote interoperable conditions for crossborder re-use,” the Commission should consider options that minimize incompatibilities between pools of PSI, which in turn maximize re-use. As far as we are concerned that means that governments should be actively discouraged from developing their own licenses. They should consider removing copyright protection for PSI by amending copyright and/or PSI law or waive copyright and related rights using CC0.

Part 4 of the questionnaire addresses charging options for PSI re-use. While the Communia Association did not provide an opinion on this matter, Federico Morando, Raimondo Iemma, and Simone Basso have provided an in-depth analysis on the Internet Policy Review website.

Creative Commons veröffentlicht Version 4.0 der Lizenzen

Markus Beckedahl, November 25, 2013 09:54 AM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Nach mehrjähriger, öffentlicher Diskussion ist seit wird heute die neue Version 4.0 der von Creative Commons entwickelten Urheberrechtslizenzen verfügbar. Der deutsche Creative-Commons-Jurist und John Weitzmann hat aus diesem Anlass bei die wichtigsten Neuerungen überblicksartig vorgestellt:

Bei der schon bekannten Einteilung in sechs verschiedene Lizenztypen mit den jeweils unterschiedlich kombinierten Elementen „Namensnennung“ (BY), „keine kommerzielle Nutzung“ (NC), „keine Bearbeitungen“ (ND) und „Weitergabe unter gleichen Bedingungen“ (Share Alike) bleibt es. Die neuen Lizenzen haben aber eine völlig neue Textstruktur bekommen. Sie sind stärker gegliedert, was dem Textwüsteneindruck entgegenwirken und der Übersichtlichkeit dienen soll.

John nennt vor allem die folgenden sechs Änderungen (für Details siehe seinen Blogeintrag):

  1. Die neue Version lizenziert Datenbankrechte mit: klarerweise nur in solchen Regionen wie zum Beispiel Europa, wo es solche Datenbankrechte überhaupt gibt.
  2. Data Mining ist ausdrücklich keine Bearbeitung
  3. Verwandte Schutzrechte allgemein umfasst: darunter fällt beispielsweise auch das in Deutschland neu eingeführte Leistungsschutzrecht für Presseverleger
  4. Neue Heilungsfrist bei Lizenzverstößen, wenn der Verstoß binnen 30 Tagen nach Bekanntwerden korrigiert wird.
  5. Share Alike: Letzte vergebene Lizenz zählt
  6. Namensnennung auch auf verlinkter Seite möglich

Außerdem erklärt der Beitrag, wo trotz Diskussion alles beim Alten geblieben ist, zum Beispiel im Bereich des umstrittenen NC-Moduls.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Hierarchy of mechanisms for limiting copyright and copyright-like barriers to use of Public Sector Information, or More or Less Universal Government License(s)

Mike Linksvayer, November 25, 2013 03:19 AM   License: CC0 1.0 Universal

This sketch is in part motivated by a massive proliferation of copyright and copyright-like licenses for government/public sector information, e.g., sub- and sub-sub-national jurisdiction licenses and sector- and jurisdiction-specific licenses intended to combat license proliferation within a sector within a jurisdiction. Also by longstanding concern about coordination among entities working to limit barriers to use of PSI and knowledge commons governance generally.

Everything following concerns PSI only relative to copyright and copyright-like barriers. There are other pertinent regulations and considerations to follow when publishing or using PSI (e.g., privacy and fraud; as these are pertinent even without copyright, it is silly and unnecessarily complicating to include them in copyright licenses) and other important ways to make PSI more useful technically and politically (e.g., open formats, focusing on PSI that facilitates accountability rather than openwashing).

Eliminate copyright and copyright-like restrictions

No longer barriers to use of PSI, because no longer barriers to use of information. May be modulated down to any general copyright or copyright-like barrier reduction, where the barrier is pertinent to use of PSI. Examples: eliminate sui generis database restrictions where they exist, increase threshold of originality required for information to be subject to copyright restriction, expand exceptions and limitations to copyright restrictions, expand affirmative user rights.

Eliminate copyright and copyright-like restrictions for PSI

For example, works produced by employees of the U.S. federal government are not subject to copyright restrictions in the U.S. Narrower exclusions from copyright restrictions (e.g., of laws, court rulings) are fairly common worldwide. These could be generalized to include eliminate copyright and copyright-like restrictions for PSI, worldwide, and expanded to include PSI produced by contractors or other non-government but publicly funded entities. PSI could be expanded to include any information produced with public funding, e.g., research and culture funded by public grants.

“Standard” international licenses for PSI

Public copyright licenses not specifically intended for only PSI are often used for PSI, and could be more. CC0 is by far the best such license, but other Creative Commons (CC) and Open Data Commons (ODC) licenses are frequently used. Depending on the extent to which the licenses used leave copyright and copyright-like restrictions in place (e.g., CC0: none; CC-BY-NC-ND, lots, thus considered non-open) and how they are applied (from legislative mandate for all PSI to one-off use for individual reports and datasets at discretion of agency), could have effect similar to eliminating copyright and copyright-like restrictions for PSI, or almost zero effect.

Universal Government License

Governments at various levels have chosen to make up their own licenses rather than use a standard international license. Some of the better reasons for doing so will be eliminated by the forthcoming version 4.0 of 6 of the CC licenses (though again, CC0 has been the best choice, since 2009, and will remain so). But some of the less good reasons (uncharitable characterization: vanity) can’t be addressed by a standard international license, and furthermore seem to be driving the proliferation of sub-sub-national licenses, down to licenses specific to an individual town.

Ideally this extreme license proliferation trend would terminate with mass implementation of one of the above options, though this seems unlikely in the short term. Maybe yet another standard license would help! The idea of an “open government license” which various governments would have a direct role in creating and stewarding has been casually discussed in the past, particularly several years ago when the current proliferation was just beginning, the CC 4.0 effort had not begun, and CC and ODC were not on the same page. Nobody is particularly incented to make this unwieldy project happen, but nor is it an impossibility — due to the relatively small world of NGOs (such as CC and the Open Knowledge Foundation, of which ODC is a project) and government people who really care and know about public licenses, and the possibility their collective exhaustion and exasperation over license details, incompatibility, and proliferation could reach a tipping point into collective action. There’s a lot to start from, including the research that went into CC-BY-4.0, and the OGL UK 2.0, which is a pretty good open license.

But why think small? How many other problems could be addressed simultaneously?

  • Defend the traditional meaning of ‘open government’ by calling the license something else, e.g., Universal/Uniform/Unified Government License.
  • Rallying point for public sector worldwide to commit more firmly and broadly to limiting copyright and copyright-like barriers to use of PSI, more rapidly establishing global norm, and leading to mandates. The one thing to be said for massive PSI license proliferation could be increased commitment from proliferating jurisdictions to use their custom licenses (I know of no data on this). A successful UGL would swamp any increased local commitment due to local vanity licenses through much higher level expectation and mandate.
  • Make the license work well for software (including being approved by the Open Source Initiative), as:
    • Generically “open” licenses are inevitably used for software, whether the steward apparently intends this (OGK UK 2.0) or does not (CC).
    • The best modern permissive license for software (Apache 2.0) is relatively long and unreadable for what it does, and has an discomfiting name (not nearly as bad as certain pro sports organizations, but still); it ought be superseded.
  • Ensure the license works for other domains, e.g., open hardware, which don’t really require domain-specific licenses, are headed down the path of proliferation and incompatibility, and that governments have obvious efficiency, regulatory, security, and welfare interests in.
  • Foster broader “open innovation community” engagement with government and public policy and vice versa, and more knowledge transfer across OIC domains, on legal instruments at the least.
  • Uniform Public License may be a better name than UGL in some respects (whatever the name, it ought be usable by the public sector, and the general public), but Government may be best overall, a tip of the hat to both the vision within governments that would be necessary to make the license succeed, and to the nature of copyright and copyright-like barriers as government regulatory regimes.

National jurisdiction licenses for PSI

A more likely mechanism for license proliferation deceleration and harm reduction in the near term is for governments within a national jurisdiction to use a single license, and follow various license stewardship and use best practices. Leigh Dodds recently blogged about the problem and highlighted this mechanism in a post titled The Proliferation of Open Government Licences.

Sub-national jurisdiction licenses for PSI

Each province/state and sub-jurisdiction thereof, down to towns and local districts, could use its own vanity license. This appears to be the trend in Canada. It would be possible to push further in this direction with multiple vanity licenses per jurisdiction, e.g., various licenses for various kinds of data, reports, and other materials.

Licenses for each PSI dataset or other work

Each and every government dataset or other publication could come with its own bespoke license. Though these licenses would grant permissions around some copyright and copyright-like restrictions, I suspect their net effect would be to heighten copyright and copyright-like restrictions as a barrier to both the use and publication of PSI, on an increased cost basis alone. This extreme highlights one of the downsides of copyright licenses, even unambiguously open ones — implementing, understanding, and using them can be seen as significant cost centers, creating an additional excuse for not opening materials, and encouraging the small number of people who really understand the mechanisms to be jealous and wary of any other reform.


Included for completeness.

Privatization of PSI copyright

Until now, I’ve assumed that copyright and copyright-like restrictions are barriers to use of PSI. But maybe there aren’t enough restrictions, or they aren’t allocated to the right entities, such that maximum value is realized from use of PSI. Control of copyright and copyright-like restrictions in PSI could be auctioned off to entities with the highest ability to extract rents from PSI users. These businesses could be government-owned, with various public-private partnerships in between. This would increase the direct contribution of PSI to GDP, incent the creation and publication of more PSI, ensure PSI is maintained and marketed, reaching citizens that can affordneed it, and provide a solid business model for Government 2.0, academia, cultural heritage, and all other publicly funded and publicly interested sectors, which would otherwise fail to produce an optimal level of PSI and related materials and innovations.

Do not let any of the above trick you into paying more attention to possible copyright and copyright-like barriers and licenses than actually doing stuff, especially with PSI, especially with “data”, doubly with “government data”.

I agree with Denny Vrandečić’s paradoxical sounding but correct directive:

Data is free. Free the data!

I tried to communicate the same in a chapter of the Data Journalism Handbook, but lacked the slogan.

Data is free. Free the data!

And what is not data? ☻

Addendum: Entirely by coincidence (in response to a European Commission consultation on PSI, which I had already forgotten about), today posts by Timothy Vollmer for the Communia Association and Creative Commons call out the license proliferation problem and endorse public domain as the default for PSI.

Back to (online) life

Donatella Della Ratta, November 22, 2013 04:30 PM   License: Attribution-ShareAlike 3.0 United States

Yes, it has been a while since I last updated this blog, which is really a shame and I do apologize with my readers and with those who kept sending me emails asking questions, demanding advice, references.. However, those who follow my Twitter feed @donatelladr know that I am still pretty active (maybe too active!) in microblogging, especially when it comes to updates on Syria.

It has been a challenging period for me, on a personal and professional level. The Syria situation is so dreadful, and for those like me who still have lots of friends inside, in very difficult conditions, it is not always easy to keep the information flow going. Anyway, there are a number of new, interesting projects coming out of Syria — some of which I have actively contributed to, like Syria Untold, the web aggregator on civil and peaceful resistance movements– . I will blog about it in the next days, inshallah.

On a professional update, it was tough for me but I had to take the sad decision to leave my position as Arab world manager for Creative Commons,  (CC) something that I have been doing for the past five years with passion and enthusiasm. It was one of the most exciting experiences (both professional and human) of my life, and I am very grateful to Joi Ito and Larry Lessig, who gave me their support and a great dose of enthusiasm to start working on building the CC Arab world community back in 2008. Thanks to this incredible opportunity, I had the chance to see a community being born, growing, and developing, with all the challenges, problems and exciting moments that this entails. This coincided with a very interesting phase in the Arab world, especially from 2008 to 2010, when Arab youth, bloggers, activists and tech enthusiasts started  gathering and organizing barcamps, unconferences, geek fests, formal and informal meetings. I feel so blessed to have been part of this very peculiar moment in the history of the Arab world. We toured the region, organized events, peer-produced music and visuals, discussed about technology, life, human rights, planned for a different future of the Region, a future based on openness and sharing.

I still believe that this future is possible, despite the dire circumstances under which the Region lives now. But for me it`s time to move to a different phase, and leave to fresh brains the exciting possibility to continue building open communities in the Arab world. I will surely continue to be an active member of the community. I will never ever leave Creative Commons, which has been my family for so many years; nor give up to the battles for openness and sharing in the Arab world that we have fought and supported. But in the next phase I will be following all this from a little bit of distance, without being involved in the day-to-day operations of organizing and coordinating the community building activities in the Region. In a way, it will be more fun to be just a part of the community and enjoy the meetings and the projects as an active participant rather than an organizer or coordinator. There is an open call now on the Creative Commons` website for a new Arab Regional Coordinator and I hope we`ll soon find somebody to take over this role which requires a lot of responsibilities but it`s also a lot of fun! Please share the call with anyone who might be interested. 

On another note, I have decided to devote more time to my academic research on the Arab world — mostly on Syria, with a focus on media and the grassroots creavitiy in the context of the uprising –. I`ve been offered the great opportunity to join  The Annenberg School for Communication at Penn University as a post doctoral fellow at PARGC (Project for Advanced Research in Global Communication)a new exciting project led by Marwan Kraidy, a Professor of Communication who has authored some of the most important books in the field of Arab media studies (e.g. “Reality Television and Arab Politics. Contention in Public Life“) . It`s great to be joining Marwan and all the other great scholars at Annenberg, and I`m sure I will learn a great deal from this experience..and inshallah also get my book about the politics of Syrian TV drama out..

I want to thank Cathy Casserly, and all my colleagues and friends at Creative Commons for these amazing five years spent together..particularly the CC Arab world community without whom this would have been simply a job, and not a life-enriching  experience as it actually was and, in fact, still is.

And now I promise I will keep this blog much more up-to-date than it was in the past months… 

Defensive Patent License 1.0 birthday

Mike Linksvayer, November 17, 2013 02:16 AM   License: CC0 1.0 Universal

Defensive Patent License version 1.0 turned 0 yesterday. The Internet Archive held a small celebration. The FAQ says the license may be used now:

Sign up and start using the DPL by emailing

There will be a launch conference 2014-02-2811-07 in Berkeley: gratis registration. By that time I gather there should be a list of launch DPL users, a website for registering and tracking DPL users, and a non-profit organization to steward the license, for which the Internet Archive will serve as a 501(c)3 fiscal sponsor.

Loosely organized thoughts follow. But in short:

  • DPL users grant a royalty free license (except for the purpose of cloning products) for their entire patent portfolio, to all other DPL users. This grant is irrevocable, unless the licensee (another DPL user) withdraws from the DPL or initiates patent litigation against any DPL user — but note that the withdrawing or aggressing entity’s grant of patents to date to all other DPL users remains in force forever.
  • Participation is on an entity basis, i.e., a DPL user is an organization or individual. All patents held or gained while a DPL user are included. But the irrevocable license to other DPL users then travels with individual patents, even when transferred to a non-DPL user entity.
  • An entity doesn’t need any patents to become a DPL user.
  • DPL doesn’t replace or conflict with patent peace provisions in modern free/open source licenses (e.g., Apache2, GPLv3, MPL2); it’s a different, complementary approach.
  • It may take years for the pool of DPL users’ patents to be significant enough to gain strong network effects and become a no-brainer for businesses in some industries to join. It may never. But it seems possible, and well worth trying.
  • Immediately, DPL seems like something for organizations that want to make a strong commitment, but a narrow one (only to others making the commitment), to patent non-aggression, ought to get on board with. Entities that want to make a broader commitment, including those that have already made complementary commitments through free/open source licenses or non-aggression pledges for certain uses (e.g., implementing a standard), should also get on board.


Last year I’d read Protecting Open Innovation: The Defensive Patent License as a New Approach to Patent Threats, Transaction Costs, and Tactical Disarmament (by Jennifer Urban and Jason Schultz, also main authors of the DPL 1.0) with interest and skepticism, and sent some small comments to the authors. The DPL 1.0, available for use now, incorporates some changes suggested in A Response to a Proposal for a Defensive Patent License (DPL) (and probably elsewhere; quite a few people worked on the license). Both papers are pretty good reads for understanding the idea and some of the choices made in DPL 1.0.

Two new things I learned yesterday are that the DPL was Internet Archive founder Brewster Kahle’s idea, and work on the license started in 2009. Kahle had been disturbed that patents with his name on them that he had been told were obtained for defensive purposes while an engineer at Thinking Machines, were later used offensively by an entity that had acquired the patents. This made him wonder if there could be a way for an entity to commit to using patents only defensively. Kahle acknowledged that others have had similar ideas, but the DPL is now born, and it just may be the idea that works.

(No specific previous ideas were mentioned, but a recent one that comes to mind is Paul Graham’s 2011 suggestion of a pledge to not initiate patent litigation against organizations with fewer that 25 employees. Intentionally imprecise, not legally binding, and offering no benefit other than appearing on a web page, probably not surprising it didn’t take off. Another is Twitter’s Innovator’s Patent Agreement (2012), in which a company promises an employee to seek their permission for any non-defensive uses of patents in the employee’s name; unclear uptake. Additional concepts are covered at End Soft Patents.)

Kahle, Urban, and Schultz acknowledged inspiration from the private ordering/carving out of free spaces (for what Urban and Schulz call “open innovation communities” to practice) through public licenses such as the GPL and various Creative Commons licenses. But the DPL is rather different in a few big ways (and details which fall out of these):

  1. Subject of grant: patent vs. copyright
  2. Scope of grant: all subject rights controlled by an entity vs individual things (patents or works subject to copyright)
  3. Offered to: club participants vs. general public

I guess there will be a tendency to assume the second and third follow strictly from the first. I’m not so sure — I can imagine free/open source software and/or free culture/open content/data worlds which took the entity and club paths (still occasionally suggested) — and I think the assumption would under-appreciate the creativity of the DPL.

DPL and free/open source software

The DPL is not replacement for patent clauses in free/open source licenses, which are conditions of public copyright licenses with different subject, scope, and audience (see previous). Additionally, the DPL’s non-grant for cloning products, which I do not understand the scope of, probably further reduces any overlap between modern FLOSS license patent provisions and the DPL that may exist. But, I see no conflict, and some complementarity.

A curiosity would be DPL users releasing software under free software licenses without patent provisions, or even with explicit patent non-grants, like CC0. A complementary curiosity would be free/source projects which only accept contributions from DPL users. Yet another would be a new software license only granting copyright permissions to DPL users (this would almost certainly not be considered free/open source), or releasing DPL users from some license conditions (this could be done as an exception to an existing license).

The DPL isn’t going to directly solve any patent problems faced by free/open source software (e.g., encumbered ‘standards’) any time soon. But, to the extent the DPL decreases the private value (expected rents) of patents and encourages more entities to not see patents as useful for collecting rents, this ought push the problems faced away, just a bit. Even if software patents were to evaporate tomorrow (as they should!), users of free/open source software would encounter patents impacted all sorts of devices running said software; patents would still be a problem for software freedom.

I hope that many free/open source software entities become DPL users, for the possible slowly accruing benefits above, but also to make common cause with others fighting for (or reforming slightly towards) intellectual freedom. Participation in broader discourse by free/open source software entities is a must, for the health of free software, and the health of free societies.

End Soft Patents’ entry on the DPL will probably be a good place to check years hence on how the DPL is viewed from the perspective of free/open source software.

DPL “enforcement”

In one sense, the DPL requires no enforcement — it is a grant of permission, which one either takes or not by also becoming a DPL user. But, although it contains provisions to limit obvious gaming, if it becomes significant, doubtless some entities will try to push its boundaries, perhaps by obfuscating patent ownership, or interpreting “cloning” expansively. Or, the ability to leave with 180 days notice could prove to be a gaping hole, with entities taking advantage of the pool until they are ready to file a bunch of patents. Or, the lack of immediate termination of licenses from all DPL users and the costliness of litigation may mean the DPL pool does little to restrain DPL users from leaving, or worse, initiating litigation (or threatening to do so, or some other extortion) against other DPL users.

Perhaps the DPL Foundation with a public database of DPL users will play a strong coordinating function, facilitating uncovering obfuscated ownership, disseminating notice of bad behavior, and revocation of licenses to litigators and leavers.

DPL copyleft?

In any discussion of X remotely similar to free/open source software, the question of “what is copyleft for X?” comes up — and one of the birthday presenters mentioned that the name DPL is a hat tip to the GPL — is the DPL “copyleft for patents”?

It does have reciprocality — only DPL users get DPL grants from other DPL users. I will be surprised if at some point someone doesn’t pejoratively say the DPL is “viral” — because the license to DPL users stays with patents even if they are transferred to a non-DPL user entity. A hereditary effect more directly analogous to the GPL might involve a grant conditioned on an licensee’s other patents which read on the licensed patent being similarly licensed, but this seems ineffective at first blush (and has been thought of and discarded innumerable times).

The DPL doesn’t have a regulatory side. Forced revelation, directly analogous to the GPL’s primary regulatory side, would be the obvious thing to investigate for a DPL flavor, but the most naive requirement (entity must reveal all patentable inventions in order to remain a DPL user in good standing) would be nearly impossible to comply with, or enforce. It may be more feasible to require revelation of designs and documentation for products or services (presumably source code, for software) that read on any patents in the DPL pool. This would constitute a huge compliance and enforcement challenge, and probably very difficult to bootstrap a significant pool, but would be an extremely interesting regulatory experiment if it gained any traction.

DPL “Troll-proof”?

The slogan must be taken with a mountain of salt. Still, the DPL, if widely adopted, would mitigate the troll problem. Because grants to DPL users are irrevocable, and follow a patent upon changes of ownership, any patent with a grant to DPL users will be less valuable for a troll to acquire, because there are fewer entities for the troll to sue. To the extent DPL adoption reduces patenting in an industry, or overall, there will be less ammunition available for trolls to buy and use to hold anyone up. In the extreme of success, all practicing entities become DPL users. Over a couple decades, the swamp is drained.

Patents are still bad

The only worrisome thing I heard yesterday (and I may have missed some nuance) was the idea that it is unfortunate that many engineers, and participants in open innovation communities in particular, see patents as unethical, and that as free/open source software people learned to use public copyright licenses (software was not subject to copyright until 30-40 years ago), they and others should learn to use appropriate patent tools, i.e., the DPL.

First, the engagement of what has become free/open source software, open access, open data, etc., with copyright tools, has not gone swimmingly. Yes, much success is apparent, but compared to what? The costs beg to be analyzed: isolation, conservatism, internal fighting, gaming of tools used, disengagement from policy and boundary-pushing, reduction (and stunting) of ethics to license choice. My ideal, as hinted above, would be for engagement with the DPL to help open innovation communities escape this trap, rather than adding to its weight.

Second, in part because extreme “drain the swamp” level of success is almost certainly not going to be achieved, abolition (of software patents) is the only solution. And beyond software, the whole system should be axed. Of course this means not merely defending innovators, including open innovation communities, from some expense and litigation, but moving freedom and equality to the top of our innovation policy ordering.

DPL open infrastructure?

I hope, in part to make the DPL attractive to existing open innovation communities, I really hope the DPL Foundation will make everything it does free and open with traditional public copyright and publishing tools;

  • Open content: the website and all documentation ought be licensed under CC0 (though CC-BY or CC-BY-SA would be acceptable).
  • Open source/open service: source code of the eventual website, including applications for tracking DPL users, should be developed in a public repository, and licensed under either Apache2 or AGPLv3 (latter if the Foundation wishes to force those using the software elsewhere to reveal their modifications).
  • Open data: all data concerning DPL users, licensed patents, etc., should be machine-readable, downloadable in bulk, and released under CC0.

DPL readability

I found the DPL surprisingly brief and readable. My naive guess, given a description of how it works, would have been something far longer and more inscrutable. But the DPL actually compares to public licenses very favorably on automated readability metrics. Table below shows these for DPL 1.0 and some well known public copyright licenses (lower numbers indicate better readability, except in the case of Flesch; Chars/(Flesch>=1) is my gross metric for how painful it is to read a document; see license automated readability metrics for an explanation):

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
8ffe2c5c25b85e52f42fcde68c2cf6a88b7abd69 Apache-2.0 8310 16.8 19.8 15.1 20.7 64.6 16.6 33.6 247
20dc61b94cfe1f4ba5814b340095b4c3fa23e801 CC-BY-3.0 14956 16.1 19.4 14.1 20.4 66.1 16.2 40.0 373
bbf850220781d9423be9e478fbc07098bfd2b5ad DPL-1.0 8256 15.1 18.9 15.7 18.4 65.9 15.0 40.6 203
0473f7b5cf37740d7170f29232a0bd088d0b16f0 GPL-2.0 13664 13.3 16.2 12.5 16.2 57.0 12.7 52.9 258
d4ec7d0b46077b89870c66cb829457041cd03e8d GPL-3.0 27588 13.7 16.0 13.3 16.8 57.5 13.8 47.2 584
78fe0ed5d283fd1df26be9b4afe8a82124624180 MPL-2.0 11766 14.7 16.9 14.5 17.9 60.5 14.9 40.1 293

Automated readability metrics are probably at best an indicator for license drafters, but offer no guidance on actually improving readability. Last month Luis Villa (incidentally, on the DPL’s advisory board) reviewed a manual of style for contract drafting by editing Twitter’s Innovator’s Patent Agreement per the manual’s advice. I enjoyed Villa’s post, but have not attempted to discern (and discernment may be beyond my capability) how closely DPL 1.0 follows the manual’s advice. By the way, Villa’s edit of the IPA per the manual did improve its automated readability metrics:

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
8774cfcefbc3b008188efc141256b0a8dbe89296 IPA 4778 19.6 24.0 15.5 22.7 75.8 17.0 27.1 176
b7a39883743c7b1738aca355c217d1d14c511de6 IPA-MSCD 4665 17.4 21.2 15.6 20.4 70.2 16.0 32.8 142


Go back to the top, read the DPL, get your and other entities in the queue to be DPL users at its launch! Or, explain to me why this is a bad idea.

Social mobilization for the Internet post-epochals grew up with

Mike Linksvayer, November 15, 2013 03:07 AM   License: CC0 1.0 Universal

Puneet Kishor has organized a book talk tomorrow (2013-11-15) evening in San Francisco by Edward Lee, author of The Fight for the Future: How People Defeated Hollywood and Saved the Internet–For Now (pdf).

I can’t attend, so I watched a recording of a recent talk by Lee and skimmed the book.

The book gives a narrative of the SOPA/PIPA and ACTA protests, nicely complementing Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate, which does what the title says by analyzing relevant posts and links among them.

Lee in the talk and book, and the authors of the mapping report, paint a picture of a networked, distributed, and dynamic set of activists and organizations, culminating in a day of website blackouts and millions of people contacting legislators, and street protests in the case of ACTA.

The mapping report puts the protests and online activity leading up to them in the context of debate over whether the net breeds conversations that are inane and silo’d, or substantive and boundary-crossing: data point for the latter. What does this portend for social mobilization and politics in the future? Unknown: (1) state or corporate interests could figure out how to leverage social mobilization as or more effectively than public interest actors (vague categories yes), (2) the medium itself (which now, a few generations have grown up with, if we allow for “growing up” to extend beyond high school) being perceived at risk may have made these protests uniquely well positioned to mobilize via the medium, or (3) this kind of social mobilization could tilt power in a significant and long-term way.

Lots of people seem to be invested in a version of (3). They may be right, but the immediate outcome makes me sad: the perceived cutting edge of activism amounts to repeated communications optimization, i.e., spam science. Must be the civil society version of “The best minds of my generation are thinking about how to make people click ads. That sucks.” This seems eminently gameable toward (1), in addition to being ugly. We may be lucky if (2) is most true.

On the future of “internet freedoms” and social mobilization, Lee doesn’t really speculate. In the talk Q&A, lack of mass protest concerning mass surveillance is noted. The book’s closing words:

“We tried not to celebrate too much because it was just a battle. We won a battle, not the war. We’re still fighting other free trade agreements and intellectual property enforcement that affect individual rights.”

In a way, the fight for digital rights had only just begun.

Of course my standard complaint about this fight, which is decades old at least, is that it does not consist merely of a series of rearguard battles, but also altering the ecosystem.

CC DE sucht Unterstützung für Übersetzungen

Markus Beckedahl, November 14, 2013 01:47 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Bei Creative Commons gehen die praktischen Vorbereitungen für die anstehende Lizenzenversion 4.0 gerade in die heiße Phase. Ein wichtiger Teil der Vorbereitung ist die Übersetzung der Textbausteine, aus denen die “Commons Deed” (die vereinfachte Darstellung der jeweiligen CC-Lizenz) auf dem Server von CC zusammengebaut wird. Es sollen so viele Sprachen wie möglich bereits übersetzt vorliegen, wenn die neue Lizenzenversion demnächst startet. Zum Einsatz kommen diese Textbausteine u.a. dann, wenn man bei der englischen Darstellung ganz unten auf “This page is available in the following languages: … Deutsch” klickt, siehe Dafür, dass Nicht-Juristen die Lizenzen in ihrer eigenen Sprache erklärt bekommen können, ist diese Funktion sehr wichtig. Mit den eigentlichen Lizenztexten hat das alles nur indirekt zu tun.

Technisch umgesetzt ist die Mehrsprachigkeit der CC-Website schon eine ganze Weile über das Portal, wo es zum übergeordneten Account “Creative Commons” 75 Gruppen für diverse Sprachen gibt, natürlich auch für Deutsch. Auch einige andere länderübergreifende Projekte und Initiativen nutzen Transifex, dessen Nutzeroberfläche sehr einfach zu verstehen ist. Die Datenbank kann direkt online bearbeitet und es können auch immer mehrere verschiedene Vorschläge für jeden Textbaustein hinterlegt werden. Für Diskussionen steht ein internes Nachrichtensystem bereit.

CC Deutschland sucht jetzt Unterstützung durch Übersetzungswillige, erstmal vor allem für die jetzt neu hinzugekommenen 44 Textbausteine im Unterbereich “Deeds & Choosers”. Es gibt aber jetzt und in Zukunft noch einiges mehr im System, was noch übersetzt bzw. überprüft werden soll. Zum Mitmachen brauchts nur einen kostenfreien Transifex-Nutzeraccount und einen Klick auf “Gruppe beitreten” auf der Seite der Gruppe “German” (wer will, kann natürlich auch noch beliebig viele andere Sprachen übersetzen helfen, man sollte die allerdings auch fließend sprechen).

Das Ziel für den Abschluss der 44 neuen Textbausteine ist sehr sportlich bereits Ende dieser Woche gesetzt. Das Team der Niederlande ist bereits fertig, Portugal und interessanterweise auch Esperanto schon sehr weit.

(dies ist ein cross post aus dem CC DE Blog)

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Email interview with Singaporean hobbyist-musician, "Su the Bandit"

Ivan Chew, November 13, 2013 01:32 AM   License: Attribution 3.0 Singapore

Another email interview with a musician (these days I'm into finding out what makes creative people tick). This time I interview a fellow Singaporean Carrie Chan, who goes by the online moniker "Su the Bandit".

This interview comes five years later (an online longitudinal study of Singaporeans and their creative adventures? Heh).

I've blogged about her in my art-blog here and here. My previous musician-interview somehow led me to wonder what my musical friend was doing lately in the creative space. I emailed Carrie to ask if she would be interested in an email interview. Here it is (maybe someday her kids would find this interesting):


[Rambling Librarian = RL]

[RL] What were the five things that have happened, musically speaking, since this 2008 interview?

[Carrie] I have:

[RL] I noticed your last post on your blog was dated 9th Aug 2011 (over two years as of this interview). Have you abandoned your blog? :) Why did you stop blogging?

[Carrie] Blogging, like songwriting, brings you back to that spot of vulnerability where you are saying something private, to heal
yourself, with no audience in mind or anyone who would like to read. If a post or song makes that connection or a reader or listener responds, that is a bonus.

I guess it takes a lot to dig deep and search yourself for the things which really matter; enough for you to express something creatively
about. Guess I've just been lazy about bringing myself to that spot of vulnerability and to dig deep to create an experience in words or
song. I used to blog or write songs late at night but lately, I crash out really early before 10 pm. Lao liao*!

(*Dialect; meaning: "old already")

[RL] Are you still making music? What are some of the new works you've done in the last two years?

[Carrie] These are the recent works:

[RL] I've always wondered if your family knows you've a blog and post music online. If the don't know, do you plan to tell them at some point? And do you see those pages as a legacy you're leaving for them?

[Carrie] Yes, they know. I've made friends through these pages, and know them in real life now. I keep it for sentimental reasons, to archive and for enabling connections - gosh, that's how I go to know you!

[RL] What keeps you busy these days?

[Carrie] After work, which takes up most of my day, I try to squeeze in some exercise - run, swim or spinning. After that, I have an hour to run through homework with the kids. Then I crash out.

[RL] What keeps you creative these days?

[Carrie] I am hardly creative these days but if the inspiration hits me, I will pick up the guitar and sing about potatoes and climbing up a volcano.


Thanks for this interview, Carrie. Perhaps I'm biased but I really found it a fun interview to read. Love the potato song! For someone who was initially shy about letting the world know her real name, you sure have progressed and been prolific in your online appearances (I'm still chicken about performing in public).

Incidentally, it would be awesome if Singapore TV programming had some documentary called "Singaporeans are Creative". I'm sure there are plenty of good reasons for creating such a series.

Recent public speaking

Michael Carroll, November 11, 2013 05:36 PM   License: Attribution 2.5 Generic

Rather than post for each speaking engagement, I'm posting a summary of a group of talks with links.

From the most recent backward.

Engadget Expand NY - Know Your Digital Rights
Nov. 10, 2013
What happens when your cloud storage provider is seized by the government, goes bankrupt, or won't let you retrieve your data?

University of Pittsburgh - Open Access Policies:  Coming Attractions
Oct. 24, 2013
Discussing where we are in OA.

Haverford College - Intellectual Property in the Academy:  Who Owns It?
Oct. 21, 2013
You'd be surprised.

Bucerius Law School (Hamburg) - Limiting Secondary Liability to Make Space for Innovation
Oct. 11, 2013
Safe harbors for Internet Service Providers are not just a means of allowing these services to exist.  They are part of a positive commitment to promoting innovation.  Although some aspects of notice-and-takedown need reform, the basic policy decision in the US and EU to limit copyright liability for these providers has been a resounding success.

American University Washington College of Law - Governance of the Internet: Spying and the Case of Brazil
Oct. 3, 2013
Discussion of revelations of NSA spying on friendly government leaders

Oklahoma State University Constitution Day Speaker
Sept. 5, 2013
The Open Access Movement represents an embrace of free speech values.  Even though the Supreme Court will not require open access as a constitutional right, the goals of the movement align with the reasons for protecting the right to speak and the right to gain access to information.  This talk reviewed the constitutional relationship between copyright law and free speech and then explained how open access is consistent with both authors' rights and the freedom of expression.

The Top Ten List of a Conference Planner

James Boyle, November 06, 2013 03:22 AM   License: Attribution 3.0 Unported

Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

Top Ten Responses from a Conference Planner
James Boyle

10: I am sorry that you are “surprised” and “concerned” by the composition of the panel, had you read any of the e-mails I have sent you over the least year, perhaps your surprise would be lessened……

9:No, I am afraid that we have not been able to find an ashram in the area, nor have we been able to arrange for the Shinto priests you requested to bless the breakfast pastries.  I realise that this will make it very difficult for you to attend, but hope….

8:  Yes, the kosher meals are ready, we note that your daughter is a vegetarian, and we have arranged for several baby-sitters (also vegetarian, and possibly kosher)  for her to select from.  We regret however that your request to “have a look over the possible catering menus for the event to make sure the food doesn’t suck” will be difficult because of the press of time..

7:Thank you for returning the form indicating your audio visual needs.  We have been able to secure a copy of Hungarian power point for OS2, the 3/4 inch European format VHS tape, and the “1970′s vintage” Moog synthesizer that you requested, but are currently having difficulty carrying off the effect you requested us to “figure out pronto”; namely a glowing finger of flame writing Mene, Mene, Tekel Upharsin  on the nearest contiguous wall

6:We are sorry that your name is misspelled in the program.  We note, without claiming this as an excuse, that it also appears to be misspelled on your return e-mail address and on your business card.

5:Thank you for your electronic registration.  Yes, all 16 of them did work; and we will begin the process of reimbursing you for 15 of them.  The reason that you have not received an electronic confirmation is that, like you, the computer does not know your e-mail address, even though as you so correctly point out “you are very well known in the field.”  Entering your street address, while ingenious, does not work.

4:We are unable to explain why you weren’t invited to give the plenary address, particularly given the fact that your scholarly work in several areas (admittedly not connected to the subject of this conference) is widely known by your relatives.  We note also that your last book did have many of the words we used in the program “just in a different order” but feel that this is not, as you believe, actionable as either copyright infringement or plagiarism.  

3:We, too, are concerned by the plight of the East Timorese, but fear that the session on computer architecture might not be the most appropriate venue to pursue it further.

2:We too, are sorry that you will have to cancel your presentation at the last minute, but agree that you could hardly be expected to know “what a drag” it would be to talk about this subject when you agreed to talk, or how “sucky” the rest of the conference would look.  We are gratified by your certainty that it will be “no problem” substituting for you at this stage, but regret that your hope that you will be able to keep your honorarium anyway, “because you spent a long time thinking about it,” is unfounded.

1:Never again.

Elektrischer Reporter erklärt Creative Commons

Markus Beckedahl, November 01, 2013 01:57 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Der Elektrische Reporter hat gestern über “Autisten, Suchmaschinenpoesie und verschenkte Bücher” berichtet und dabei im dritten Teil Creative Commons Lizenzen vorgestellt. Außerdem lächelt dabei Leonhard Dobusch in die Kamera:

Die Sendung gibt es hier als MP4 und hier als WebM.

Wir wollen netzpolitik weiter ausbauen. Dafür brauchen wir finanzielle Unterstützung. Investiere in digitale Bürgerrechte.

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Economics and the Commons Conference [knowledge stream] report

Mike Linksvayer, October 31, 2013 03:17 AM   License: CC0 1.0 Universal

Economics and the Common(s): From Seed Form to Core Paradigm. A report on an international conference on the future of the commons (pdf) by David Bollier. Section on the knowledge stream (which I coordinated; pre-conference post) copied below, followed by an addendum with thanks and vague promises. First, video of the stream keynote (slides) by Carolina Botero (introduced by me; copy).

III. “Treating Knowledge, Culture and Science as Commons”

Science, and recently, free software, are paradigmatic knowledge commons; copyright and patent paradigmatic enclosures. But our vision may be constrained by the power of paradigmatic examples. Re-conceptualization may help us understand what might be achieved by moving most provisioning of knowledge to the commons; help us critically evaluate our commoning; and help us understand that all commons are knowledge commons. Let us consider, what if:

  • Copyright and patent are not the first knowledge enclosures, but only “modern” enforcement of inequalities in what may be known and communicated?
  • Copyright and patent reform and licensing are merely small parts of a universe of knowledge commoning, including transparency, privacy, collaboration, all of science and culture and social knowledge?
  • Our strategy puts commons values first, and views narrow incentives with skepticism?
  • We articulate the value of knowledge commons – qualitative, quantitative, ethical, practical, other – such that knowledge commons can be embraced and challenged in mainstream discourse?

These were the general questions that the Knowledge, Culture and Science Stream addressed.

Knowledge Stream Keynote Summary

Carolina Botero Cabrera, a free culture activist, consultant and lawyer from Colombia, delivered a plenary keynote for the Knowledge Stream entitled, “What If Fear Changes Sides?” As an author and lecturer on free access, free culture and authors’ rights, Botero focused on the role of information and knowledge in creating unequal power relationships, and how knowledge and cultural commons can rectify such problems.

“If we assume that information is power and acknowledge the power of knowledge, we can start by saying that controlling information and knowledge means power. Why does this matter?” she asked. “Because the control of information and knowledge can change sides. The power relationship can be changed.”

One of the primary motives of contemporary enclosures of information and knowledge, said Botero, is to instill fear in people – fear of violating copyright law, fear of the penalties for doing so. This inhibits natural tendencies to share and re-use information. So the challenge facing us is to imagine if fear could change sides. Can we imagine a switch in power relationships over the control of knowledge – how we produce, distribute and use knowledge? Botero said we should focus on the question: “How can we switch the tendency of knowledge regulation away from enclosure, so that commons can become the rule and not the exception?”

“There are still many ways to produce things, to gain knowledge,” said Botero, who noted that those who use the word “commons” [in the context of knowledge production] are lucky because it helps name these non-market forms of sharing knowledge. “In Colombia, we don’t even have that word,” she said.

To illustrate how customary knowledge has been enclosed in Colombia, Botero told the story of parteras, midwives, who have been shunted aside by doctors, mostly men, who then asserted control over women’s bodies and childbirth, and marginalized the parteras and their rich knowledge of childbirth. This knowledge is especially important to those communities in remote areas of Colombia that do not have access to doctors. There is currently a huge movement of parteras in Colombia who are fighting for the recognition of their knowledge and for the legal right to act as midwives.

Botero also told about how copyright laws have made it illegal to reproduce sheet music for songs written in 18th and 19th century Colombia. In those times, people simply shared the music among each other; there was no market for it. But with the rise of the music industry in the 20th century, especially in the North, it is either impossible or unaffordable to get this sheet music because most of it is copyrighted. So most written music in Colombia consists of illegally photocopied versions. Market logic has criminalized the music that was once natural and freely flowing in Colombian culture. Botero noted that this has increased inequality and diminished public culture.

She showed a global map illustrating which nations received royalties and fees from copyrights and patents in 2002; the United States receives more than half of all global revenues, while Latin America, Africa, India and other countries of the South receive virtually nothing. This is the “power relationships” that Botero was pointing to.

Botero warned, “We have trouble imagining how to provision and govern resources, even knowledge, without exclusivity and control.” Part of the problem is the difficulty of measuring commons values. Economists are not interested, she said, which makes it difficult to go to politicians and persuade them why libraries matter.

Another barrier is our reliance on individual incentives as core value in the system for regulating knowledge, Botero said. “Legal systems of ‘intellectual property’ place individual financial incentives at the center for knowledge regulation, which marginalizes commons values.” Our challenge is to find ways to switch from market logics by showing that there are other logics.

One reason that it is difficult to displace market logics is because we are reluctant or unable to “introduce the commons discourse from the front door instead of through the back door,” said Botero. She confessed that she herself has this problem because most public debate on this topic “is based on the premise that knowledge requires enclosure.” It is difficult to displace this premise by talking about the commons. But it is becoming increasingly necessary to do so as new policy regimes, such as the Transpacific Trade (TPP) Agreement, seek to intensify enclosures. The TPP, for example, seeks to raise minimum levels of copyright restriction, extend the terms of copyrights, and increase the prison terms for copyright violations.

One way to reframe debate, suggested Botero, is to see the commons “not as the absence of exclusivity, but the presence of non-exclusivity. Th is is a slight but important difference,” she said, “that helps us see the plenitude of non-exclusivity” – an idea developed by Séverine Dussolier, professor and director of the Revue Droit des Technologies de l’Information (RDTI, France). This shift “helps us to shift the discussion from the problems with the individual property and market-driven perspective, to a framework and society that – as a norm – wants its institutions to be generative of sharing, cooperation and equality.”

Ultimately, what is needed are more “efficient and effective ways to protect the ethic and practice of sharing,” or as she put it, “better commoning.” Reforming “intellectual property” is only one small part of the universe of knowledge commoning, Botero stressed. It also includes movements for “transparency, privacy, collaboration, and potentially all of science and culture.”

“When and how did we accept that the autonomy of all is subservient to control of knowledge by the few?” asked Botero. “Most important, can we stop this? Can we change it? Is the current tragedy our lack of knowledge of the commons?” Rediscovering the commons is an important challenge to be faced “if fear is going to change sides.”

An Account of the Knowledge, Culture and Science Stream’s Deliberations

There were no presentations in the Knowledge Stream breakout sessions, but rather a series of brief provocations. These were intended to spur a lively discussion and to go beyond the usual debates heard at free and open software/free culture/open science conferences. A primary goal of the breakout discussions was to consider what it means to regard knowledge as a commons, rather than as a “carve-out” exception from a private property regime. The group was also asked to consider how shared knowledge is crucial to all commoning activity. Notes from the Knowledge Stream breakout sessions were compiled through a participatory titanpad, from which this account is adapted.

The Knowledge Stream focused on two overarching themes, each taking advantage of the unique context of the conference:

  1. Why should commoners of all fields care about knowledge commons?
  2. If we consider knowledge first as commons, can we be more visionary, more inclusive, more effective in commoning software, science, culture, seeds … and much more?

The idea of the breakout session was to contextualize knowledge as a commons, first and foremost: knowledge as a subset of the larger paradigm of commons and commoning, as something far more than domain-specific categories such as software, scientific publication and educational materials.

An overarching premise of the Knowledge Stream was the point made by Silke Helfrich in her keynote, that all commons are knowledge commons and all commons are material commons. Saving seeds in the Svalbaard Seedbank are of no use if we forget how to cultivate them, for example, and various digital commons are ultimately grounded in the material reality of computers, electricity infrastructures and the food that computer users need to eat.

There is a “knowledge commons” at the center of each commons. This means that interest in a “knowledge commons” isn’t confined to those people who only care about software, scientific publication, and so on. It also means that we should refrain from classifying commons into categories such as “natural resources” and “digital,” and begin to make the process of commoning itself the focal point.

Of course, one must immediately acknowledge that digital resources do differ in fundamental ways from finite natural resources, and therefore the commons management strategies will differ. Knowledge commons can make cheap or virtually free copies of intangible information and creative works, and this knowledge production is often distributed at very small scales. For cultural commons, noted Philippe Aigrain, a French analyst of knowledge governance and CEO of Sopinspace, a maker for free software for collaboration and participatory democracy, “the key challenge is that average attention becomes scarcer in a world of abundant production.” This means that more attention must be paid on “mediating functions” – curating – and “revising our cultural expectations about ‘audiences’.”

It is helpful to see the historical roots of Internet-enabled knowledge commons, said Hilary Wainwright, the editor behind the UK political magazine Red Pepper and a research at the Transnational Institute. The Internet escalated the practice of sharing knowledge that began with the feminist movement’s recognition of a “plurality of sources.” It also facilitated the socialization of knowledge as a kind of collective action.

That these roots are not widely appreciated points to the limited vision of many knowledge commons, which tend to rely on a “deeply individualistic ethical ontology,” said Talha Syed, a professor of law at the University of California, Berkeley. This worldview usually leads commoners to focus on coercion – enclosures of knowledge commons – as the problem, he said. But “markets are problematic even if there is no monopoly,” he noted, because “we need to express both threats and positive aspirations in a substantive way. Freedom is more than people not coercing us.”

Shun-Ling Chen, a Taiwanese professor of law at the University of Arizona, noted that even free, mass-collaboration projects such as Wikipedia tend to fall back on western, individualistic conceptions of authorship and authority. This obscures the significance of traditional knowledge and history from the perspective of indigenous peoples, where less knowledge is recorded by “reliable sources.”

As the Stream recorded in its notes, knowledge commons are not just about individual freedoms, but about “marginalized people and social justice.” “The case for knowledge commons as necessary for social justice is an undeveloped theme,” the group concluded. But commons of traditional knowledge may require different sorts of legal strategies than those that are used to protect the collective knowledge embodied in free software or open access journal. The latter are both based on copyright law and its premises of individual rights, whereas traditional knowledge is not recognized as the sum of individual creations, but as a collective inheritance and resource.

This discussion raised the question whether provisioning knowledge through commons can produce different sorts of “products” as those produced by corporate enclosures, or whether they will simply create similar products with less inequality. Big budget movies and pharmaceuticals are often posited as impossibilities for commons provision (wrongly, by the way). But should these industries be seen as the ‘commanding heights’ of culture and medicine, or would a commons-based society create different commanding heights?”

One hint at an answer comes from seeing informality as a kind of knowledge commons. “Constructed commons” that rely upon copyright licenses (the GPL for software, Creative Commons licenses for other content) and upon policy reforms, are generally seen as the most significant, reputable knowledge commons. But just as many medieval commons relied upon informal community cooperation such as “beating the bounds” to defend themselves, so many contemporary knowledge commons are powerful because they are based on informal social practice and even illegality.

Alan Toner of Ireland noted that commoners who resist enclosures often “start from a position of illegality” (a point made by Ugo Mattei in his keynote talk). It may be better to frankly acknowledge this reality, he said. After all, remix culture would be impossible without civil disobedience to various copyright laws that prohibit copying, sharing and re-use – even if free culture people sometimes have a problem with such disrespectful or illegal resistance. “Piracy” is often a precursor to new social standards and even ne w legal rules. “What is legal is continent,” said Toner, because practices we spread now set traditions and norms for the future. We therefore must be conscious about the traditions we are creating. “The law is gray, so we must push new practices and organizations need to take greater risks,” eschewing the impulse to be “respectable” in order to become a “guiding star.”

Felix Stalder, a professor of digital culture at Zurich University of the Arts, agreed that civil disobedience and piracy are often precisely what is needed to create a “new normal,” which is what existing law is explicitly designed to prevent. “Piracy is building a de facto commons,” he added, “even if it is unaware of this fact. It is a laboratory of the new that can enrich our understanding of the commons.”

One way to secure the commons for the future, said Philippe Aigrain of Sopinspace, is to look at the specific challenges facing the commons rather than idealizing them or over-relying on existing precedents. As the Stream discussion notes concluded, “Given a new knowledge commons problem X, someone will state that we need a ‘copyleft for X.’ But is copyleft really effective at promoting and protecting the commons of software? What if we were to re-conceptualize copyleft as a prototype for effective, pro-commons regulation, rather than a hack on enclosure?”

Mike Linksvayer, the former chief technology officer of Creative Commons and the coordinator of the Knowledge Stream, noted that copyleft should be considered as “one way to “force sharing of information, i.e., of ensuring that knowledge is in the commons. But there may be more effective and more appropriate regulatory mechanisms that could be used and demanded to protect the commons.”

One provocative speculation was that there is a greater threat to the commons than enclosure – and that is obscurity. Perhaps new forms of promotion are needed to protect the commons from irrelevance. It may also be that excluding knowledge that doesn’t really contribute to a commons is a good way to protect a commons. For example, projects like Wikipedia and Debian mandate that only free knowledge and software be used within their spaces.


Thanks to everyone who participated in the knowledge stream. All who prepared and delivered deep and critical provocations in the very brief time allotted:
Bodó Balázs
Shun-Ling Chen
Rick Falkvinge
Marco Fioretti
Charlotte Hess
Gaëlle Krikorian
Glyn Moody
Mayo Fuster Morrell
Prabir Purkayastha
Felix Stalder
Talha Syed
Wouter Tebbens
Alan Toner
Chris Watkins

Also thanks to Mayo Fuster Morrell and Petros for helping coordinate during the stream, and though neither could attend, Tal Niv and Leonhard Dobusch for helpful conversations about the stream and its goals. I enjoyed working with and learned much from the other stream coordinators: Saki Bailey (nature), Heike Löschmann (labor & care), Ludwig Schuster (money), and especially Miguel Said Vieira (infrastructure; early collaboration kept both infrastructure and knowledge streams relatively focused); and stream keynote speaker Carolina Botero; and conference organizers/Commons Strategy Group members: David Bollier, Michel Bauwens, and Silke Helfrich (watch their post-conference interview).

See the conference wiki for much more documentation on each of the streams, the overall conference, and related resources.

If a much more academic and apolitical approach is of interest, note the International Association for the Study of the Commons held its 2013 conference about 10 days after ECC. I believe there was not much overlap among attendees, one exception being Charlotte Hess (who also chaired a session on Governance of the Knowledge and Information Commons at the IASC conference).

ECC only strengthened my feeling (but, of course I designed the knowledge stream to confirm my biases…) that a much more bold, deep, inclusive (domains and methods of commoning, including informality, and populations), critical (including self-critical; a theme broached by several of the people thanked above), and competitive (product: displacing enclosure; policy: putting equality & freedom first) knowledge commons movement, or vanguard of those movements. Or as Carolina Botero put it in the stream keynote: bring the commons in through the front door. I promise to contribute to this project.

ECC also made me reflect much more on commons and commoning as a “core paradigm” for understanding and participating in the arrangements studied by social scientists. My thoughts are half baked at best, but that will not stop me from making pronouncements, time willing.