This proposal is a rewrite of one we first ran five years ago here at QCO. Since then, meaningful copyright (and patent) reform proposals have gradually been gaining ground. You know you’re making progress when someone gets fired from the U.S. Republican Study Committee for writing a policy brief that speaks sanely about copyright. Because the policy climate is changing, we’re re-introducing our proposal (cross-posted at Falkvinge on Infopolicy and the Center for the Study of Innovative Freedom) with an updated and clarified explanation. For many readers, it still won’t go far enough — it’s not abolition, for example. But proposals like this succeed first by reframing debate. In this case, the point is that if a government is going to offer private monopolies at all, it should at least reserve the public a way out of them.

The Liberation Point: Managing Monopolies for the Public Good

What would a truly free-market approach to copyrights and patents look like?

The problem we have right now is this:

Liberation point: monopoly value vs liberation value, over time

The flat green line represents the value to the public of de-monopolizing the work — think of it as “what the public would be willing to pay for unrestricted access”. The point where the curved blue slope crosses the green line is the point where there is no longer any public or private purpose to having a monopoly. From that moment on, the value of the monopoly to the rights-owner is equal to or less than the value of de-monopolization. Yet today, the monopoly continues beyond that point. The green line is simply ignored in the current system: we pretend it does not exist.

(The graph is a simplification, but not in ways that matter to this proposal.)

You might think there’s already a market solution. After all, in the current system, anyone could in theory be offered a fixed sum to liberate their work into the public domain [1]. But markets don’t quite work the way we’d hope. This is is why we have eminent domain in real property, for example. As soon as someone starts talking about building an airport in some farm fields, all of a sudden every farmer decides their field is worth ten times as much as it was the day before, such that no airports could ever be built if we did not use the pre-rumor valuations. It is the same with copyrights and patents: the mere expression of interest in re-use drives up the price instantly, and the perpetual optimism of rights-holders ends up stretching their monopoly past its natural market end — hurting everyone else and preventing further re-use, yet frequently without realizing the benefit the rights-holder hoped for. We all lose.

But unlike with land, there’s a way out, because there’s a third thing we can do besides sell or not sell: we can liberate. That makes all the difference.

The Liberation Point system

Suppose things worked this way instead — I’ll use copyrights for the sake of discussion, but this applies to patents too:

A new work gets an initial automatic copyright term, as it does today but much shorter: maybe a few weeks or months from publication, enough to ensure there’s time for the owner to register the work if they wish to extend the monopoly.

If the copyright owner does not register, the work simply enters the public domain [2].

But there’s an alternative: instead of letting the monopoly lapse, the copyright owner can choose to register the work for continuation of copyright (renewable annually), with a registration fee proportional to the self-declared value of the work. That is, the copyright owner picks a number of dollars (yuan, euros, whatever) that she claims the work is worth. It can be any number at all, but the yearly registration fee will be a percentage of it — for discussion’s sake, say 1%. The exact proportions don’t matter here: it could be 0.5% or 2% instead of 1%, registration could be semi-yearly instead of yearly, etc. The idea is the same, regardless of how you set the knobs.

Now comes the key:

Since that declared value is now a matter of public record, anyone can pay it to the copyright owner to liberate the work into the public domain. This is not a purchase, it is a liberation. Prior to liberation — whether it comes through payment or through term expiration — people would still be free to sell or lease their copyrights, for whatever price they can get (which, interestingly, may be higher or lower than the registered value — the market dynamics behind that decision are just as rich as those involved in determining exclusivity value under today’s copyright system). But whoever the owner is, whether the author or someone else, they’re responsible for keeping up the registration. And while the work is still under registration, anyone can come along and pay the registered owner the declared value to liberate it.

Liberation, unlike purchase or lease, is a mandatory transaction. The justification is that since the registrant chose the price in the first place, it is by definition fair: it was self-declared. Furthermore, these are after all public monopolies, and the public’s ultimate interest is in having works be available without restriction. For governments to hand out monopolies with no escape clause has always been an abdication of responsibility. If there is a way to fix that, we should take it.

The copyright holder has an incentive not to declare too high a value, because she’ll have to pay a percentage of it to register; she has an incentive not to declare too low, because then someone will come along and liberate the work very quickly at a low price (though some artists will find that liberation is economically a better deal for them anyway, and simply not register, or register at a declared value of zero in order to get a timestamp for attribution purposes).

Because the value of a work may change over time, the registrant may adjust the declared value up or down each year when renewing the registration [3]. This is also one of the reasons behind that brief initial registration-free monopoly term: it gives the copyright holder a chance to judge the work’s monopoly value, information she can use to decide how much to register the work for.

Whether indefinite renewal should be available is an open question. Personally I think not, for two reasons: first, because there has simply never been a compelling argument for perpetual copyright and most jurisdictions do not have it. Second, because awareness of an approaching horizon will pressure registrants to set lower liberation prices as that horizon comes closer — which is the right direction for things to move, from the public’s point of view, since even the most confident authors cannot reliably predict years ahead of time which monopolies will remain valuable, and therefore far-future valuations do not have a significant incentivizing effect anyway.

But even if indefinite renewal were permitted, the system still has desirable effects. The tendency of monopolies to accumulate in media conglomerates (who then press for Internet censorship to preserve those monopolies) would be greatly lessened by the cost of maintaining all those registrations. Forced to choose which assets are really valuable, the companies would have to lower the liberation values for many works, thus providing the fertile ground for re-use and innovation that artists, other publishers, and the rest of us are denied under the current system.

On “Balance”

While this proposal is a compromise, it’s at least a compromise tilted toward the public interest. By analogy, think of a homeowner who cuts a driveway opening onto a public street in order to gain access to a private garage. If I take a streetside parking space away from the public, I expect to pay the city (that is, the public) a fee, and usually annually, too, not just a one-time fee. Similarly, a copyright owner who wants to keep a work out of the public domain should pay for that privilege. But unlike a garage, this privilege need not be permanent, because losing monopoly control over a work is not as serious as losing one’s indoor parking space.

This system would go a long way toward alleviating the orphan works problem, by ensuring that the copyright owner of a work could always be found (someone must be paying the fees over at the registry), and toward alleviating the ghost works problem (in which derivative works are suppressed), by setting a maximum amount of money that, in the age of Kickstarter, would usually still be attainable by a motivated party who wanted to see that work in the public domain.

The copyright lobby frequently talks of finding an appropriate “balance” between the needs of creators and the needs of the public. Like many appeals to balance, it is a smokescreen for something else: in this case, for efforts to increase copyright terms and restrictions beyond their already absurd lengths. The “balance” they’re talking about neatly presupposes that creators and the public are somehow on opposite sides, while multinational content monopoly conglomerates are, curiously, absent from the picture altogether. (Their portrayal is also historically suspect, as copyright was primarily designed to subsidize distributors not creators anyway.)

Thanks to this focus on exclusivity-based balance, proposals to improve the system are usually minor tweaks: broader “fair use” rights, a more thorough prior-art discovery process, various changes in scope, etc. But these approaches leave the basic problem untouched: when a copyright or patent is granted today, it creates a monopoly with no countervailing pressure towards a true free market.

There needs to be a market-based representation of the value of de-monopolization, expressible by those whom de-monopolization benefits. In Macaulay’s famous words, “the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.” [4] Anyone familiar with, for example, the mess George Lucas made of his monopoly on the “Star Wars” movies will instantly see Macaulay’s point. The problem is not that Lucas botched the sequels, but that the Lucasfilm monopoly prevents anyone else from doing better. This is the problem with monopolies generally — it’s not what they let the monopoly owner do, it’s what they don’t let others do. Monopolies are the opposite of free markets.

The Liberation Point system introduces de-monopolization as a market force, without involving the government in pricing decisions, term-length calibrations, or other arbitrary regulatory judgements [5]. The system takes “balance” seriously: it gives the rights-holder a decisive role in setting a valuation and benefitting from it, but at the same time represents the public’s interest in not having works monopolized forever. Crucially, it avoids the need for complicated regulatory formulas, which would inevitably create a target surface for monopoly interests to aim lobbying power at. Instead, it gives the public a mechanism for representing its own interests directly, with the government limited to a bookkeeping role.

The proposal is not merely rhetorical. I would be delighted, if surprised, for it to receive legislative interest. But it is also meant to expand the range of the possible. Fiddling with copyright term lengths and improving the Patent Office’s processes feel good, but they are fundamentally repainting a burning barn. To get lasting improvement, we need to permanently reduce the “lobbyability” of the system as a whole. The Liberation Point method is one way to do that [6], and to show that market-tempered monopoly is possible in principle. It’s high time these kinds of solutions were on the table.

References:

[1] The term “public domain” is used informally here. It is a term of art in copyright law more than in patent law, but it is easy to intuitively understand what it would mean for patents: that no one has a monopoly, that is, there is no one with the power to restrict usage.

[2] There should be nothing shocking about this: the public domain is the natural destination for works, and even most proponents of lengthening copyright and patent terms pay lip service to that goal. Furthermore, registration requirements used to be the norm if one wanted to hold any public monopoly. Indeed, the requirement for copyrights was only eliminated under the theory that insisting on registration gave advantage to corporations who had economies of scale to streamline the paperwork involved in filing — which was probably true, in the days before the Internet, but today registration would be as easy as uploading a file and receiving a digitally-signed timestamp.

[3] Alternatively, the owner could be allowed to adjust the declared value at any time (perhaps even as a reaction to liberation offers), with the provision that any upward adjustment would require immediate payment of the difference between the old and new registration fees. However, the public domain would probably be better served by simply allowing adjustment only at fixed intervals: if the owner of a work can’t figure out its market value and set the fee accordingly, that is no reason to favor the owner over the public when the work is being liberated at a price the owner clearly once thought sufficient.

[4] en.wikisource.org/wiki/Copyright_Law_(Macaulay)

[5] One of the problems with not having a systematized and predictable path to de-monopolization is that we instead get unpredictable decisions like India’s decision to set a compulsory license rate on a drug still under patent. The point is not that the Indian government made a mistake — the decision was quite defensible — but that handling each such instance as a special case inevitably leads to lack of predictability and, eventually, to corruption. Yet it’s governments that issue patent monopolies in the first place: if they can set compulsory license rates in specific cases, then they can offer a mechanism for de-monopolization in the general case.

[6] My colleague Nina Paley has suggested a simpler system: bring back registration, and set the fee for the first year at $1, the second year at $2, the third year at $4, then $8, $16, $32, $64, and so on. This has the advantage of immediate comprehensibility, and it’s clearly effective at tempering the monopoly: very few works would remain restricted past the 20 year mark, and her system doesn’t need to be adjusted for inflation for a long time.

[7] For works released under a free license, the fee should be waived, and indeed the requirement to register or renew at all should be waived, because such licenses are non-monopolistic by definition. For simplicity’s sake I did not mention this in the original proposal. Richard Stallman immediately noticed the problem; I thank him for pointing it out, as that reminded me to add this footnote.

Help The Law See.You landed on this page because you didn’t do anything wrong.

So, breathe.  Sit up straight :-).  You’re fine.

You didn’t do anything wrong.

You copied something.  Maybe it was a song, or a video, or some text.  All you did was make a copy of it.  You didn’t steal anything, you didn’t take false credit, you didn’t intercept or dilute money that belongs to someone else.  All you did was copy.  You took part in a ritual as old as the human race: the act of sharing a piece of culture or information.

Some people may try to make you feel bad about what you did.  They’ll tell you that by copying something, you took money out of the pocket of an artist (but you know you didn’t — in fact, you probably helped the artist by spreading their work).  They’ll call it “piracy”, as though making copies of things is somehow like board a ship on the high seas, stealing its cargo, and doing who-knows-what with the crew.  They’ll tell you that what you did is analogous to counterfeiting money (it’s not).  They might claim to you that the whole purpose of copyright is to supposed to be to provide artists with a stable income, even though that’s not why copyright was invented, copyright is not how most artists earn their livings anyway, and overall it probably does more harm to artists than it does good.

When these people tell you you’ve done something wrong, they’re asking you to help support a myth, but you’re under no obligation to go along.  In fact, we’d appreciate it if you’d point them to this page.

So don’t buy it.

We don’t mean “don’t buy the song”, of course.  You should absolutely buy the song (or movie, or CD or DVD) if you want to — though if you really want to support the artist, it’s often more efficient to just send them money, because that way there’s no monopoly-based organization in the middle skimming most of your support away (naturally, if you feel the intermediary is doing good work, then support them too; many publishers are providing a valuable service).  It might be that the copying you did, or contemplated doing, is illegal in the country where you did it — a lot of countries have laws against copying.  We encourage you to obey the laws in your jurisdiction.  We just mean don’t buy the argument.  Don’t give those laws authority over your emotions.  If you’ve copied something, don’t feel guilty.  You didn’t do anything wrong.

There are many practical and philosophical reasons for obeying a law you don’t agree with, but there is never a reason to feel guilty about breaking a law you don’t agree with.  If you broke a law against copying publicly-available data, and someone’s trying to make you feel bad about that, then send them here, or at least ask them to make a rigorous case for what they’re claiming.

Can they justify the position that humans shouldn’t be allowed to share culture freely?  If they’re saying that the economic concerns for artists are so great as to trump the serious civil liberties concerns with this position, do they have actual numbers to back that up?  Have they talked to the artists who have been hurt by copyright restrictions?  The translators who couldn’t translate because the law wouldn’t allow them to?  The teachers who couldn’t teach the material they needed?  The publishers and distributors who couldn’t bring great books and films to audiences?

Copying is not wrong, and you didn’t do anything wrong.  So don’t feel bad — just spread the word.

Flying dollar signs.Leonard Kirke is an author, blogger, and video artist based in Ohio. A believer in the ideals of Free Culture, he releases all of his work into the public domain via CC0, and is currently at work on a fantasy novel, the first in a series, aimed at children and young adults. His blog The Vertigo of Freedom can be found at leonardkirke.wordpress.com.  He is also a regular contributor to the surreal multimedia art project known as The Jeremy Kellerman Advice Hour Archive, which can be found on YouTube, Blogger, and the Internet Archive.

Many stories surrounding the debate over copyright today are focused on purely corporate affairs: film studios cracking down on illegal file-sharing, fair use being trampled on Youtube, record labels hunting down cover bands, and the efforts of lobbyists to pass far-reaching anti-copyright infringement legislation, such as SOPA earlier this year, that threaten internet freedom.

Recently, however, a story has been making the rounds online via social media that is certain to draw both the sympathy and righteous indignation of struggling independent artists everywhere. The story, and the following built by the man at the center of it, highlights some of the popular, often-unquestioned assumptions about the supposed inherent justice of copyright law.

As recounted in a post on his Tumblr account, the story begins back in 2008 when freelance artist Max Hancock, who often works under the pseudonym Kouotsu, created both a 2-D and 3-D character model design for a robot girl as part of an assignment while he was in art school and posted it to the popular site DeviantArt.

He goes on to explain, “I failed to put my name/info on the image though, so it has been spread around the internet and some people have modeled it without my permission (just for the record you don’t have to sign something for it to be protected by copyright). They usually find out who made it later and gladly credit me. So I don’t mind!”

That is, he adds, “Until someone tries to sell it.”

That is exactly what happened, he says, starting in March of this year, when another artist began selling a derivative version of his design on Turbosquid, a site which allows the sale of 3-D models for use in various media.

The full Tumblr post can be read here http://kouotsu.tumblr.com/post/34584552625/so-ill-try-to-sum-up-whats-happening-here-in, and the response from the head of Turbosquid can be found here http://turbosquidinc.tumblr.com/post/turbosquid_to_kouotsu. Further posts continue to elaborate as the situation has unfolded.

Mr. Hancock is obviously no stranger to the concepts of copyright and of credit, and very much a believer in both. When a Turbosquid agent initially suggested he have some pity on the accused “infringer,” he had this to say: “They tried to appeal to pity by talking about how hard he worked on creating the model from my design. HI! I DID THAT TOO!”

Later, he talks about how wronged he feels due to the whole incident: “I think it goes without saying that the profits belong to me. It is not right for a guy in another country to steal my design and make thousands from it while I struggle to make ends meet. I have never made a penny off of that character design.”

The plight of Max Hancock is indeed unfortunate; few would wish an artist to fail, or to struggle needlessly. Fans want to support the artists they love so that they can continue creating art, regardless of medium. We can see that this incident has captured the attention of Max Hancock’s supporters, and likely many sympathetic strangers sensitive to the problems facing independent artists have also contributed to the story being spread through social media.

Yet much of the righteous indignation here is founded upon the same very questionable principles upon which so many corporations rely in their own IP battles, and which so many people are, when the issues are presented in that context, beginning to question.

Though it’s been said before, there is a very important difference between copyright and plagiarism. The latter is a moral rights issue. There may be much to be said in favor of the view that the artist on Turbosquid infringed upon Max Hancock’s moral right to attribution. If the other artist indeed placed his own name on the work, and failed to mention Kouotsu/Max Hancock as the original artist of the work upon which his derivative design was based, then certainly there is a case to be made that the original artist was morally wronged.

Yet Hancock himself admits in his Tumblr post that he lets failure-of-attribution slide in most cases. The real issue here is obviously monetary, specifically the monetary aspect of the government-granted monopoly that is copyright. The concern of an artist like Max Hancock is very understandable, as he needs to continue profiting from his art, as he says, to make ends meet.

Certainly, Mr. Hancock is correct in his representations of copyright law, and is correct in stating that the law is on his side. Yet in the midst of the uproar, it would be worthwhile to ask if the law itself, and the assumed “right” underlying “copyright,” are really defensible, even in an emotionally-charged situation like this one. Further, one must wonder if the very same fan-based defense Hancock drew upon for support might imply a different way of dealing with this situation, one that could ultimately be to Mr. Hancock’s benefit far more than a copyright infringement lawsuit would be.

Assuming that plagiarism was at work here as has been alleged, then Mr. Hancock is within his rights to address that issue. However, it could be argued that his claims to compensation for the other artist’s monetization of their derivative work are not so solid.

“I have never made a penny off of that character design.” says Mr. Hancock. But why would he have? He never attempted to monetize his character design. He was content to let it get reused with attribution as long as the uses were noncommercial, and was even content to allow lack of attribution, hoping that whoever re-used it without attribution would eventually learn of his identity and credit him. This was the extent of the use Hancock allowed of his design…and the extent of his pursuit of its use.

Now, Hancock believes that because profits have been made in 2012 on the sale of copies (specifically, copies of a derivative made by someone else) of something he created in 2008, then the profits belong to him.

Yet he created that work as part of a school assignment. It was certainly not a work for hire or part of any commercial project, and he seemingly had no expectation of making money from it in the first place. Even if he did, he made no attempt to do so.

One may argue that the derivative created by the artist on Turbosquid is not “different enough” to constitute an “original” work, but as anyone familiar with copyright law knows, those kinds of arguments can get quite slippery. But even if the consensus is that the designs are incredibly similar, or even if there was an exact copy being sold rather than a derivative, what exactly was stolen from Hancock?

The derivative does not take away Hancock’s original design from him, nor does it deprive anyone else online from copying it for themselves. Through his efforts at publicizing his case, plagiarism is certainly not the primary issue any longer; by now, anyone familiar with the incident knows that Kouotsu is the original artist. It does not prevent Hancock himself from monetizing the design either, and that brings up a final, but no less important point: what Max Hancock could be doing to use this situation to his advantage instead of attempting to reclaim profits he never sought in the first place.

From the fast spread of the story, it is clear that people want to support Max Hancock as an artist. So rather than consider pursuing legal action against the artist of the derivative work, or against Turbosquid, Mr. Hancock should be asking fans to support him directly. He needs to ask his fans to put their money where their mouth is.

Mr. Hancock has a wonderful opportunity here to show that ultimately, it is an artists’ fans that are the ones to reach out to if an artist is going to make a living, and that nebulous state-granted monopolies are not the path to success. His next step should not be to incite righteous anger against the accused “infringer” (and accused plagiarist), but rather to channel the support he’s already shown that he can inspire into the sharing of his work, both to increase his exposure and to motivate his fans to help him continue his work with donations.

Rather than relying on the same system as the artist of the derivative version of his design, and on copyright, Hancock should ask his followers to support him monetarily by making donations, paying for unique physical copies or originals of his art (after all, copying is not theft, but a container IS a limited resource that can be rightfully monetized) and by continuing to share his work with other potential fans.

If the same people who shared his story of copyright infringement would donate to him or even buy physical copies of his work, he might just have a chance to make as much as the artist on Turbosquid made from his derivative of Mr. Hancock’s design. Perhaps he could even make much more. If fans pitched in with the same fervor they have already shown in sharing his story and offering works of support, Mr. Hancock could likely prosper even more than the artist of the derivative work, perhaps even if that artist were allowed to continue selling his version of Mr. Hancock’s design.

Plagiarists deserve to be exposed for their false claims; there is no good argument to the contrary. But the clarity of plagiarism should not be confused with the vague, ethereal plane that is the world of copyright. Copying is never theft, and sharing, especially when done with attribution out of ethical consideration for an artist, can only be helpful for all artists. Yet in the days since his story first came to light, Mr. Hancock has only continued to voice support for the concept of copyright, even going so far as to counsel people on what he perceives as the value of registering works with the government Copyright Office.

One would hope that Max Hancock might see this as an opportunity to grow his fan-base, benefit from their financial support, and show the world that artists, in actuality, do not need copyright to thrive. He’s already proven that he can draw plenty of positive support for himself, now he only needs to channel that support to actually further his work as an obviously very talented visual artist, rather than letting himself get bogged down in what could wind up as a costly and lengthy legal battle.

In the end, such a course of action would only serve to create an air of legitimacy for the claims of corporations and middle-men who truly benefit from copyright far more than the vast majority of artists ever will. Supporting copyright will only support the same industry of traditional gatekeepers that make it difficult for artists to find wide exposure for their work. By embracing openness and relying on the support of fans, Mr. Hancock could benefit himself far more than an expensive legal battle ever would.

When artists set their art free, as Nina Paley would attest, they can make a living, form deeper connections with their fans, and avoid the Sisyphean task that is a copyright lawsuit. It may never be easy to make a living as an artist, but why would one support a faulty system that makes it even more difficult?

To drive the point home one final time, here is a comment on the original post from one of Max Hancock’s loyal fans, “mari-tan,” on his Tumblr. If he can generate this kind of support pursuing those that he believes have wronged him, then certainly he can generate support directly through donations, sales, and the free sharing of his work, surely a much more effective path to success than he will find in copyright.

“That post actually makes me really, really sad. I’ve been following your art since around 2007 and it just… makes me really angry that this is happening to someone like you. I just want to tell you that you have my full support and if it comes to the point that you need support from any of us that love your art, I’m definitely here to help you win in anything you may need!!”

If you’d like to support Nina Paley’s work on her upcoming freely-licensed film Seder-Masochism, you can donate via the Question Copyright Artist-in-Residence Working Fund. Let me repeat that word for emphasis: “donate”. There.

(Donations are tax-deductible to the full extent permitted by law; see here for details.)

Seder-Masochism, Nina Paley's next project.

Nina’s trailer for Seder-Masochism has already received over 400,000 views on various video hosting sites (Internet Archive, Vimeo, YouKu, YouTube), and was written up in Ha’aretz yesterday. People who saw our tweet (yes, that’s a hint to retweet or redent) have have already started donating to the Working Fund. We encourage everyone who likes high-quality, free-licensed films to join the club!

This guest editorial by Kira of Students for Free Culture makes a powerful argument that the hoped-for “drag the center in our direction” effect of the non-free-culture licenses offered by Creative Commons isn’t working, and that a different approach is needed.  We felt Kira’s points were compelling enough to be worth airing — they’re the right questions, at least, and one heartening sign is that (as noted in the editorial’s first link) Creative Commons has started helping people distinguish free licenses from non-free ones, with their “Approved for Free Cultural Works“ seal and their freedom-displaying license chooser.  The question Kira raises now is, is continuing to offer the non-free licenses the best way to advance Creative Commons’ mission?

Creative Commons licenses arranged all in a row.

A few weeks ago, Students for Free Culture published a detailed and thoroughly cited post calling for the retirement of proprietary license options in Creative Commons 4.0. Already the story has been picked up by Techdirt and Slashdot and it has spurred lots of heated debate around the value of the NonCommercial (NC) and NoDerivatives (ND) licenses to Creative Commons and to rightsholders, but not a lot of discussion has been framed around the official mission and vision of Creative Commons.

Creative Commons has responded to the post stating that adopters of NC and ND licenses “may eventually migrate to more open licenses once exposed to the benefits that accompany sharing,” maintaining that these licenses have been a strategic measure to approach that goal. The name Creative Commons itself highlights the aim of enabling a network of ideas and expressions that are commonly shared and owned or, as we usually call it, the commons. To be very explicit, one need not look any further than Creative Commons’ mission statement (added emphasis) to see that this is what they work for:

Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.

 

Our vision is nothing less than realizing the full potential of the Internet — universal access to research and education, full participation in culture — to drive a new era of development, growth, and productivity.

The NC and ND clauses are non-free/proprietary because they retain a commercial and/or creative monopoly on the work. Legally protected monopolies by any other name are still incompatible with the commons and undermine commonality. There is no question as to the purpose of Creative Commons or the definition of free cultural works. What Students for Free Culture has offered is not primarily a critique of proprietary licenses, but a critique of Creative Commons’ tactics in providing them. The idea that the non-free licenses “may eventually migrate to more open licenses once exposed to the benefits that accompany sharing” is a reasonable one, but one that deserves careful reflection after a decade of taking that approach.

This line of reasoning is intuitive in a permission culture: that license options which sound good to rightsholders will lure them into giving up some restrictions licenses and becoming more comfortable with the idea of fully liberating their works. Encouraging the use of free culture licenses then becomes a problem of education and communication of values, and the question then becomes whether or not the proprietary licenses make that task easier or more difficult.

Some argue that rightsholders are not ready for free culture and that they need to be eased into it. Anecdotal arguments supporting this idea say that people switch to free licenses from the non-free ones once they learn about how problematic NC and NC are, but there is no evidence to support this claim. We have no idea how strong Creative Commons’ campaign for free licenses would be if they only provided free culture licenses from the start, and Students for Free Culture suggest that in the current climate of copyright and intellectual property maximalism, what we need is to stretch what is accepted as reasonable position to take, not sit comfortably within it.

It may be counter-intuitive that only offering free culture licenses would bring more rightsholders to liberate their works over time, but if we consider that this would allow Creative Commons to have a cohesive message behind the licenses they do offer, we can imagine their educational materials could be much more powerful. More importantly, they would be expanding the perceived realm of possibility. Students for Free Culture argue that the proprietary licenses are mainly used because they are misunderstood and function to reinforce those misconceptions rather than move rightsholders towards free culture. It is analogous to telling people to vote for the lesser of two evils to ease them out of supporting a two-party political system. It may seem practical and appear to bring more steady and reliable change, but it only serves to reinforce the status quo. 

The popular criticisms of the post are actually very revealing of this very idea.

All of the defenses of proprietary clauses which have been raised in the recent debate boil down to these types of arguments: that everything should be CC-licensed because it is better than “all rights reserved”; that Creative Commons needs to support all the options that rightsholders want; that not providing more license options is restricting freedom; and that the non-free clauses do serve worthwhile purposes even if they are oppose free culture. These arguments are all problematic in ways either explicitly mentioned or linked to from the original post, and underscore how much extra work this makes for Creative Commons.

The everything-should-be-CC-licensed argument:

  • “Big media could adopt NC or ND, but not free culture licenses”
  • “So much is already similarly available, it should all be CC”
  • “The purpose of Creative Commons is to provide a diversity of options”
  • “Creative Commons isn’t an ideological organization about free culture”

These arguments fail to see the mission of Creative Commons and ignores that for years they have been moving away from providing more options in favor of promoting their free culture licenses. Creative Commons does not exist to provide a licensing option for every possible desire of rightholders, nor does it exist to slap a CC logo on every work released under terms similar to what license options they could or currently do offer. We can keep licenses that big media may use for the sake of meaningless adoption, or we can focus on the licenses that subvert intellectual monopolies. Creative Commons could have moved towards being a highly-flexible modular licensing platform that enabled rightsholders to fine-tune the exact rights they wished to grant on their works, but there’s a reason that didn’t happen. We would be left with a plethora of incompatible puddles of culture. Copyright already gives rightsholdors all of the power. Creative Commons tries to offer a few simple options not merely to make the lives of rightsholders easier, but to do so towards the ends of creating a commons. By its very name, Creative Commons does promote an ideology.

The freedom of choice argument:

  • “Everyone’s freedom should be respected”
  • “This is an effort to dictate our license choices”
  • “Promoting freedom by taking away choices is hypocritical”
  • “This is just one definition of freedom”

Right off the bat, these arguments miss the fact that the old proprietary licenses will still exist and can be forked and updated, but that is beside the point. They not only confuse different freedoms but, in doing so, also value the legally granted right to restrict freedom over the freedom to be free from those very restrictions. This is the foundation of permission culture and the antithesis of the commons.  [Editor’s note: we completely agree with the author here, and have written about this point before.]

The NC-and-ND-clauses-are-useful argument:

  • “They serve a purpose even though they aren’t free”
  • “A vague protection is better than nothing”
  • “These protect us from big media stealing our work”
  • “Not everyone wants to use a free culture license”

These arguments all seem to be built around the popular discontent with today’s draconian copyright regime, yet they are at the same time apologetic towards the permission culture which enables it. While NC and ND appear to empower creators to retain control over their work, it is crucial to remember what copyright is: a legal construct of private property and, more specifically, a monopoly. Distributing these innumerable government-granted monopolies, even to individuals, only leads to monopolistic organizations that amass ownership and control over huge sums of our culture. Again, Creative Commons could have provided a totally customizable framework for rightsholders to pick what rights to grant for each of their works, but copyright already gives them that power. Making it easier to do only validates the fears that made copyright what it is today. Take, for example, the Free Software Foundation. If they had advocated for any proprietary software/licenses that were anything “better” than the terms that Windows and OS X are distributed under, the world would not be as open to the idea of free software as it is today.

These three types of arguments exclude those that have been made purely concerned with the interests of rightsholders and the many many interesting and creative misunderstandings of the license terms and enforceability. This all serves to indicate that Creative Commons’ current strategy is working against all of the great work they do promoting a freer culture. People don’t need to be convinced that copyright is a broken system. Instead, Creative Commons should be focusing on affecting what people believe is an acceptable position, showing the world that much more is possible, and proving that we can and are building a free culture.

Creative Commons is at a very important philosophical and tactical crossroads. The crux of the concern raised by Students for Free Culture comes down to weather Creative Commons will be locked in by pressures to serve the interests of rightsholders or be committed to a strategic standard promoting free licensing towards the creation of an indivisible and shared commons. The drafting of version 4.0 of the licenses may be the best and last opportunity to make such a dramatic change, which underlines the urgency of the suggestion. Creative Commons is perfectly positioned to critically reevaluate its strategy and make a change that more effectively promotes its mission, so please heed Students for Free Culture’s call to action:

The “Lunatics” project is coming very close to the end on our Kickstarter to fund the voice and audio production for Lunatics. We’re at 31% now, and have just 4 days left to raise just under $3000 to make our goal:

We had canceled an earlier attempt to fund the entire production of the pilot episode for our free-culture science-fiction series, but we immediately launched this replacement, which will just fund the next step in production (I’ve only just realized I never updated the link on QuestionCopyright.org!). We are all set up to record the voice actors and complete the soundtrack (including music, sound effects, and so on). We are also going to create an 2D animatic to go with it. This is a useful pre-visualization step in the production of the final animated episode, but it will also make for a more appealing presentation of the audio.

We’re offering viewable DVD copies of the animatic production, soundtracks, and also the recently-finished “Pre-Production Artbook & Writer’s Guide” among the rewards. Plus you can get your name in the credits as anything from a “Backer” ($10) to a “Corporate Logo Sponsor” ($1000) — and many steps in between).

“Lunatics” is a free-culture (CC By-SA 3.0 licensed) open-film (meaning the animation elements, 3D models, sound effects, voice tracks, and so on are or will be available under the same license on our site) project. We also make extensive use of free-software and insist on open data formats. After release, we’ll be using QuestionCopyright’s very own Creator Endorsed mark to promote products that fund us, and we’ll share what we earn with the artists who have contributed.

The Beach

Hey, everyone.  This is the time of year when QuestionCopyright.org traditionally slows down.  Our global headquarters empties out as everyone hits the road for some much-needed sunshine, family time, etc,

We may not be completely inactive this month, but let’s just say you probably don’t want QCO to be your primary news source for August.

See you in September, and enjoy your summer (or winter, if you’re in the Southern hemisphere).

 

Terry Hancock is an editor at QuestionCopyright.org, a prolific writer about free software and free culture, and a driving force behind Lunatics, the crowd-funded and freely-licensed science fiction web TV series — about which he brings us an update:

We had a successful Kickstarter back in December to fund pre-production for Lunatics (mainly the character design), and now we’re running another much larger Kickstarter to fund the production of a pilot. This is probably the hardest step for the Lunatics Project: in order to get a sustainable cycle of support for a free-culture series (Lunatics will be released under the Creative Commons By-SA license), we first have to find people willing to risk a little on producing our very first episode. Fortunately, we’ve got a great team together already, and it’s clear that the pilot will be really good — but only we can get funded to pay the artists for the time they need to work on it.

 

UPDATE: Although this was canceled we are near the end of a replacement campaign to pay for just the next step, which is Voice and Audio Production with an Animatic

If we succeed, we’ll be breaking new ground in several areas with the Lunatics series:

  • This is already a larger project than most free-culture productions, and it will grow: we currently have about 20 people directly involved to a greater or lesser degree (and closer to 100, if you count all of the passive collaboration from appropriated free-culture materials such as music tracks and sound effects).

  • Part of our plan is to give back to the community, both in terms of the new assets created for the project (such as 3D models and graphics), but also by paying shares of our “Creator Endorsed” sales to actively-contributing artists as well as some passively-contributing artists (such as musical artists whose tracks are in our soundtrack).

  • By doing so, we are encouraging a sustainable commercial free-culture industry to develop.

  • We will also be scaling up both fan-funding models and collaborative, open-source movie production.

  • We will also be pushing the envelope on free-software tools for creating film and video, with new technologies such as the Pyppet digital puppetry system.

  • Since our project is a series, it has the potential to grow beyond even that, providing more opportunities.

We deliberately chose an ambitious goal which would require a team effort to achieve. One of the gaols of the “Lunatics” project is to demonstrate that fan-funded free-culture projects of this size can be created (i.e. that there’s not some kind of practical ceiling beyond which a media project has to be proprietary in order to succeed). There’s no question that $100,000 is a lot of money to raise this way (though several game projects have done it).

On the other hand, it’s a very small budget for a film of this type. It’s actually only about 1/6th as much as what the Blender Foundation’s “Sintel” cost and a little bit less than what “Elephants Dream” cost — and with it we plan to make a movie about four-times longer (roughly an hour) with a fully-dramatized story, many 3D modeled virtual sets and characters, and a cast of speaking roles (seven principals and a dozen or so supporting parts). We have a few tricks in mind to make this possible, and it does involve people working for a lot less than industry-standard rates. The artists working on this project are working on it because they’re really excited about it. But they do need to pay bills while they do it, and the stipend we’ve budgeted for them will give them the freedom to work on this project.

For this pilot episode, we’ve already got a small team of six Blender modeling and rigging experts, a Synfig expert who will be doing animatics and also final animation for the show, and a cast of seven principal voice actors for the pilot episode (six series regulars and a guest).

This story is itself about a crowd-funded vision of the future of space settlement, since our fictional “International Space Foundation” is essentially a grass-roots crowd-funded operation.

Georgiana Lerner (age 7) on the first leg of her journey to the Moon, going up into orbit on a specially-modifiedy Soyuz (Couch model by Sathish Kumar, Character model by Andrew Pray) 

Georgiana Lerner (age 7) on the first leg of her journey to the Moon, going up into orbit on a specially-modifiedy Soyuz (Couch model by Sathish Kumar, Character model by Andrew Pray)

The pilot episode follows young Georgiana Lerner (age 7) on her way to the Moon with her mother to join the rest of the colonists. That’s because it’s really her arrival that turns “ISF-1” into a settlement instead of a mere “base” on the Moon. Along the way, we pick up most (not quite all) of the series regular cast, and we take a kind of “voyage into the future” where we start from the rather archaic (19th-century) technology of trains, pass through 20th century technologies up to and including spaceflight into orbit, and then depart into the science-fiction realm with the Moon Shuttle that takes us beyond the present. It’s a vision of the future, versy much tied to the present — a smoothly integrated future that always feels “just around the corner” from where we are now.

Sets and characters will be rendered using Blender (Model by Cosmin Planchon, Display graphics by Timothée Giet, Concept by Terry Hancock, based on existin Soyuz-TMA design by RosCosmos) 
Sets and characters will be rendered using Blender (Model by Cosmin Planchon, Display graphics by Timothée Giet, Concept by Terry Hancock, based on existin Soyuz-TMA design by RosCosmos)

If this sounds like your kind of fun, please help us make it happen by backing our Kickstarter or telling more people about it. We have less than 25 days left to raise about $100,000 to fund it — so we could really use your help!

Rewards include DVD and Lib-Ray editions of the video. The soundtrack on CD (you can also get a nice download package). There are also posters and other tie-ins. You can even buy the T-shirt.

Big IdeasThe Atlantic magazine has put out its yearly Ideas Issue.  I always look forward to it — sure, not all of the ideas are great, and many are questionable, but that’s to be expected when a lot of ideas are gathered together.  They’re often still instructive, sometimes the more so for being deliberately provocative.

But every so often, there’s one whose most interesting characteristic is that it managed to get past the editors at all.  This year, it’s from Elizabeth Wurtzel, and it reads, in full:

Of the Founders’ genius ideas, few trump intellectual-property rights. At a time when Barbary pirates still concerned them, the Framers penned an intellectual-property clause—the world’s first constitutional protection for copyrights and patents. In so doing, they spawned Hollywood, Silicon Valley, Motown, and so on. Today, we foolishly flirt with undoing that. In a future where all art is free (the future as pined for by Internet pirates and Creative Commons zealots), books, songs, and films would still get made. But with nobody paying for them, they’d be terrible. Only people who do lousy work do it for free.

Er.  Where to start?  The vertigo-inducing ahistoricity?  The clumsy attempt at guilt-by-association through a spurious double mention of pirates?  The unexamined assumption that copyright restrictions are how artists get paid?

Or how about just with a rewrite:

Of the Founders’ genius ideas, few trump intellectual-property rights. At a time when Barbary pirates still concerned them, the Framers penned an intellectual-property clause—the world’s first constitutional protection for copyrights and patents—into a justly famous document that they composed for no compensation and that was in the public domain from the moment it was first published. In so doing, they spawned Hollywood, Silicon Valley, Motown, and so on. Today, we foolishly flirt with undoing that. In a future where all art is free (the future as pined for by Internet pirates and Creative Commons zealots), books, songs, and films would still get made. But with nobody paying for them, they’d be terrible. Only people who do lousy work do it for free.

My suggested edits are in red.

Pirate Party NY

What they’re doing:

Dressing as pirates in a public square in New York City, and singing popular, copyrighted songs while holding up signs reading: “This is illegal”, “We are violating copyright law”, “We could get sued for this”.

Where and when they’re doing it:

Lincoln Center Plaza in Manhattan, New York City
Across the street from ASCAP Headquarters

Saturday, July 14th, 2012, 12:00pm.  (Meeting up at Columbus Circle 59th Street for a briefing first, then walking to Lincoln Center at 12:30.)

Pirate Party NY is providing signs, lyric sheets, bottled water, and snacks.

Golly, that’s jolly!  Where can I find out more?

nypirateparty.org/piratechoir

‘Nuff said.