Good Enough: why I use the imperfect CC licenses

My former colleague Elliot blogged a recent conversation he had on Twitter with someone about using a CC license vs. the GAL. Which license to choose is a common discussion topic, and it seems perfectly reasonable to choose a license based on its features alone. Aspects of the CC licenses don’t always line up with everyone’s desired uses. And I am very sympathetic to that: even with the influence I had on the final text, the licenses don’t completely match up what I usually want to do. But imperfect as they are for my purposes, I would still rather use them than anything else. 1

As Elliot recalls, I was delighted to get the chance to work on the 4.0 licenses. The drafting process draws on several of my strongest skills—logical reasoning, crafting language, anticipating long-term effects of infrastructure design—and allows for huge influence over the direction of a community I care about by producing the documents that form part of its legal basis; our choices in most realms are heavily shaped by the infrastructure we build it on top of. For me, a huge license nerd, this kind of problem-solving is just fun… but I wasn’t going to write a new license for enjoyment alone. One of the values I hold is that the commons, and its communities, should not be fragmented unnecessarily: where communities want essentially the same things, we should not put obstacles in place that prevent them from working together; instead, we should figure out how to resolve incompatibilities in ways that don’t place barriers for those who don’t want them. And so I hope that my involvement with other (non-software) licenses is minimal at best: needing to create or improve another one would be because the CC effort has failed enough people in a significant enough way that it is better to have that fragmentation than to keep to the standard.

Not everything in the CC licenses is perfect for everyone. That wasn’t what it was designed to be. 2 But what the licenses were designed to be is “good enough”. The six licenses themselves create some fragmentation even within the CC suite 3, and catch several broad buckets of intent, dividing into separate licenses with a few different basic elements, and made compatible where possible. The licenses are an attempt to reach a common consensus—losing some optimizations for particular purposes in the interests of making the broadest commons, which many license users want more than they want any individual feature not present. The incompatible licenses at least separate along lines where it would not be possible to accommodate different desires simultaneously: the people who really want a license that does not allow derived works probably would not in fact be able to come to a consensus on terms with the people who want remixes to be shared alike, and so that split doesn’t fragment anything that wasn’t going to be fragmented anyway. The clusters CC created this way may not have been the optimal split, but at least it is manageable: only six licenses, several of which are compatible with each other. 4

The thing that always disappoints me about efforts to create new open licenses is that when they’re incompatible they fragment the commons: the licenses don’t work for combining content even with people who want basically the same things. Creating a standard—which the CC licenses are, if informally—comes with tradeoffs. And exploring new ideas, where a standard exists, comes with a cost; anyone who does it should be aware of that cost before making their choices. Outside of unusual circumstances, that cost is usually too high to justify creating an entirely new license. A license that is fully compatible with the existing licenses doesn’t have such problems, but it still creates costs: reading licenses is hard, and easy to get wrong. (Even for lawyers.) Most people, when they care about the license at all 5, will probably stick with the ones they know rather than try to figure out the interaction.

But the existence of a standard doesn’t mean the space is completely closed—that the “good enough” implementation of the licenses is what everyone must settle for. Ideally a standard has a common base for everyone to count on, but allows for customization and experimentation in ideas that can happily coexist with it. In licensing this is most important for imforming the reuser, who should be able to know that when using a license she knows, she will never have additional obligations on top it. With CC licensing, you may always waive conditions or add permissions to make a restrictive license more permissive; you may not add restrictions on the reuser. 6 You may always make non-enforceable requests or suggestions. (For example, someone may waive the attribution requirement and release works anonymously, or may express a desire for uses of the work without being able to prevent other uses. 7) And here is where you might get from “good enough” closer to what you want.

The person in the discussion is so close to wanting what the CC license provides—some of which can be handled by a waiver, and some of which is wanted is better handled by requests than in legal code anyway. 8 But using another license comes with the costs of switching away from the better-known standard. And it, too, is necessarily only “good enough” for others; any license written for general use isn’t going to be perfect for its entire community of users, and can’t be. Sometimes “good enough” is your only choice, and what that’s true, I recommend the one with the greatest benefits to make up for it.

Notes:

  1. For non-software works. For software works, which I contribute vanishingly little to, I usually recommend GPL or a GPL-compatible license, for similar reasons.
  2. Even just speaking for myself, the CC license is not ideal for my wants—my ideal content license would remove the patent disclaimer and slightly change some of the attribution requirements! But my desire to participate in the broad commons created with a standard license means I’d rather accept the consensus than insist on uncommon terms that will make compatibility difficult. (And, in fact, I have a fair amount of history arguing about shortcomings in the past CC licenses, enough so that the first time I met Lessig in person I apologized for giving him a hard time.)
  3. And, regrettably, some confusion, because “CC licensed” doesn’t mean very much unless you know which CC license it is.
  4. Not only is it probably not the optimal split, I don’t even think the ND licenses should be CC licenses, and I generally don’t recommend NC either.
  5. Which is not always! Some people don’t care at all, or just want the general idea. But other users, especially those working on particular sites or contexts where it is important, care a lot.
  6. Some people attempt to add restrictions through Terms of Use and other legal barriers that are not strictly license conditions. This is at the very least against the spirit of the license; arguably, it is a misuse of the Creative Commons trademark. If you do this, stop. And while no one can stop you from writing your own license that it is just like a CC license but with an extra restriction on reuse, it may not be called a CC license.
  7. So what is the value of doing this without it being enforceable? This will not stop those who either have a need to use a particular work for their purposes or who simply do not care about the author’s request—but those who would prefer to comply with such a request will be informed about it. To avoid going against the spirit of the license, it should be made clear that this is not a license condition and comes with no consequences for going against it, and is only a preference. Note that requests are no substitute for things you rely on to be enforceable… but that’s another post.
  8. Another topic for its own post.

Digital Media and Library Copyright talk notes

(These are notes from my presentation at the Library Freedom Project‘s Digital Rights in Libraries unconference, cleaned up into a readable format; meant to accompany the slides. I would not consider these notes publishable as a standalone article, but hope they will be useful to those who could not see the presentation or who want to remember what was said! See the slides from the panel, including the first two presenters, Tim Vollmer and Lila Bailey. Missing the extemporaneous rambling, which I will be happy to reproduce in more or less similar fashion at future in-person meetings, especially if caffeinated beverages are involved.)

Some issues in digital media and library copyright:

  • Digital first sale
  • DRM/anti-circumvention
  • Terms of use

Digital first sale:

One of the most important safety valves in copyright is the “first sale doctrine“. When you buy a physical copy of a copyrighted work, the copyright holder doesn’t get to control what happens to it after that: you may sell it or otherwise dispose of it as you see fit without permission (and even against the copyright holder’s wishes). Early case: prohibited resale below a given price.

First sale allows libraries to exist (and other things like it); it also allows used book/media stores. It makes sense to have a clear separation there or you’d have these objects you couldn’t get rid of. (US law likes to allow people to have control over property once they have bought it in general.)

Digital is theoretically great for libraries, you don’t have to have a physical thing taking up space, you have a copy of a thing. But there are hidden costs, because basically there is no digital first sale in the US.

(Note: “first sale” in general covered by Lila in first part of presentation; basically, copyright holders can no longer use copyright to control movement of physical goods containing copyrighted works after authorized sale to first owner.)

Why no first sale? You must make a copy to transfer a digital work, and first sale doesn’t permit copying, only transfer of owned item. Also you might not own a copy of the work: you got a license to use one, while the copyright holder still has control over the “original”.

Lack of digital first sale is why the rest of these issues can still be a problem. For print media, you bought it, it was yours, the copyright holder had no further control over what you did with it. When you have a digital copy, the copyright holder keeps some of that control. Long after you’ve “bought” a digital copy, the copyright holder can continue to say what you may or may not do with it, can even take it away from you. (It may break contract with you, but penalties for contract breach are often small. Note example of 1984 being pulled from Kindles.)

This is getting taken to absurd levels: John Deere saying you don’t own your tractor, you have licensed the right to use it. This may help the situation: if everyone is angry we may get legislative reform. Legislative reform may be only way to fix this. For now: know that this is an issue and consider it as part of the cost when you are deciding whether to buy print or digital resources for your institution–for something where it is important that you have a permanent copy that cannot be restricted, consider print instead.

More links:

DRM:

“Digital Rights Management” — sounds like what we all came to this conference to hear about, digital rights management. The voice of RMS in my head would say that you should say “Digital Restrictions Management”.

We all know something about DRM and everyone hates it, everyone’s angry about it. And there are about 10 million reasons. I’ll start talking about it by saying what makes me most angry about it: it makes the default protections of copyright a sham. The government won’t stand behind its own built-in protections for the public, will allow companies to enforce things that wouldn’t be permitted in analog media. DRM restrictions can go beyond what copyright would restrict and be illegal to break.

Stealing a great statement from my partner Greg Maxwell (who is a cryptographer): “Information wants to be free” is the truth. But it is not an aspirational statement, it’s a law of nature.

And DRM is one of the ways people try to get around that law of nature. We often make attempts to control laws of nature (we dam rivers to stop them from flowing naturally, we use pesticides to stop organisms from reproducing) and we don’t always get this right. When we don’t know what we’re doing, we can get things very wrong and destroy a fragile ecosystem. We’ve learned at least a little bit about this in the physical world but we haven’t quite figured it out in the digital.

What is DRM? Basically, any technical restrictions that carry a legal penalty for getting around it. (When circumvention is outlawed, only outlaws will circumvent DRM.) Next presenter will talk about function & privacy issues. Technical solution to a social problem, and like all such, an imperfect one.

Note that it can be true that the author wants to let you break the DRM but you could still be in trouble (mainly where a third party applied: many distribution platforms apply DRM whether author wants it or not).

Limited exceptions in sec. 1201: security research, library acquisition decisions (but not any other library purpose), a few others. Other exceptions every 3 years by a cumbersome rulemaking. (New Librarian of Congress to be appointed may bring changes, we’ll see.)

DRM prevents legitimate uses: reading on non-standard devices (including assistive devices), reading on computers where the operator is not allowed to download software, excerpting for fair use in most contexts. DRM creates vendor lock-in, compromises privacy (tracking reading records), normalizes per-use permission culture/non-ownership. DRM makes life hard for libraries and archives: it often depends on services/media/hardware being around and working that will not last long and does not come with guarantees.

It used to be functionally worse and people avoided it because it didn’t work, now it works better (in the technical sense) and you may not realize how it is harming you until you already have invested in encumbered resources, and that’s harmful.

Many commercial vendors use DRM, including many popular in libraries and popular with consumers–Overdrive, Amazon, iTunes store, etc.

The good news is that for almost any DRM encumbrance you may find that someone has broken it. The bad news is that it’s illegal for them to help you, or for you to help others, even where you are allowed to break it yourself. Where exceptions are permitted, you may possess tools, but it still may be illegal to distribute them: you know how to do it, but can’t help your friends and patrons even though their uses would be legal and they do not know how to do it themselves. (Case law has been split on distribution of tools for permitted uses.) Some librarians/advocates choose to help with wink and nudge (suggesting search terms, etc) to fulfill their mission to their patrons.

Anti-circumvention penalty ties to infringement of copyright (for example, case about garage door openers, where no copyright interest so no penalty for circumvention), but making fair uses or copyrighted material has not been permitted.

You can search for DRM-free sources: best guide at DefectivebyDesign.org, covering books, movies, music; you can add to it if you know of any.

Sometimes resources are hard to access not because of DRM, just technical difficulty. Tools exist for help, especially for reading and format conversion. Some examples: Calibre is an ebook reader for many formats, many browser plugins for popular ebook formats, web and command line conversion tools for other file formats.

Other resources:
Brief summary of DRM and libraries from ALA, and DRM tip sheet.

Terms of use:

Copyright is not the only way rightsholders can impose legal restrictions on library media. Terms of use can also impose restrictions that go beyond copyright, such as only permitting a limited number of copies, or only a limited number of times borrowed, or restricting availability of formats. Terms of Use are contract restrictions: maybe between you and a vendor, or maybe between a patron and a website. The penalties are different that copyright infringement (usually actual damages) but still particularly as an institution you want to avoid them.

Example restrictions: many “free” resources allow only personal, noncommercial use (as a library, this is OK, but your patrons may have other ideas for what they need).

Big problem with Terms of Service: they’re hard to read, even for lawyers, ain’t nobody got time for that. (TOS;DR says “I read and understand the Terms of Service” is the biggest lie on the internet; everyone just clicks OK.) Drafted in company’s favor, often just copied boilerplate, not considering public interest or even their own customers/users, may restrict your rights or compromise your privacy. (May allow selling of data, tracking of user behavior, or restrict kinds of reuse, may also require arbitration instead of court, etc.)

You can sometimes negotiate these, especially with services you are paying for. (Not often with websites you access.) And you should; get together with others who may share your interests (consortia members? other local institutions?).

Also there are services to help you read and understand ToS and find providers who have privacy and rights-friendly terms. See TOS;DR (summaries of TOS and ratings of sites) and TOSBack (a terms of service tracker for many major sites), and then check out this awesome comic about Terms of Service, Big Data, and your rights.

Understanding other people

Sometimes I think I might understand a few other people, and then I try to figure out what they do and don’t think is funny.

Greg does not understand why a picture of Han Solo labeled “Keep Han in Hanukkah” is funny, even though he knows the “Keep Christ in Christmas” meme. It’s not that he thinks the joke is bad. (It is bad, obviously.) It’s that he doesn’t recognize it as a valid, well-constructed joke.

“But Han Solo doesn’t have anything to do with Hanukkah!”

“Exactly.”

“But that’s not funny. It would be funny if he was Jewish or had something to do with Hanukkah.”

“No, that would make it less funny.” (He responds with silence.) “You’ve seen ‘Keep Christ in Christmas’, right?” (He nods.) “So ha ha, the pattern doesn’t hold. It’s funny because it doesn’t work.”

“Harrison Ford is Jewish.”

“Han Solo isn’t. That’s not the point.”

“But that makes no sense! It’d be like for Kwanzaa… who’s that skater? It’d be like ‘Keep Kwan in Kwanzaa’. That doesn’t work. She’s Asian, right?”

An image search turns up several pictures of Michelle Kwan with the text “Keep Kwan in Kwanzaa“. And at this he admits defeat: not that he thinks it’s a joke, but that everyone else does, even if they are horribly, hopelessly wrong.

I wonder which one of us is supposed to be the weirdo.

This Week in Law

OK, actually many weeks ago in law, because I am a terrible blogger.

I was a guest on This Week in Law #303 thanks to the cajoling of my friend and former colleague Sarah, who is a co-host of the show with Denise Howell. (She got me on IRC and tried to convince me it would be fun and I told her that I would be terrible. A few hours later she tried again and talked me into it! And the next morning we recorded.)

Lawprof Clark Asay and I are guests on this episode, “Charmingly Earnest, Yet Insufferable”, in which we talk about open source and free software, digital first sale, the Streisand effect, ebooks, privacy, drones, harassment, and the Startup Castle–the title pulled from one of my comments on the last item!

(Oh, geez, there’s a transcript. While I always appreciate the availability of transcripts for video/audio, I am not sure how my off-the-cuff rambling will turn out in text!)

And while you’re at it, you should also read Sarah’s thoughts on having been a talking head.

When better is worse: a comment on DRM

I wrote a post for the Day Against DRM for Defective by Design. You can read it there (and should read others’ essays also!). Republishing here:

Everyone knows how to recognize cartoon villains. They twirl their mustaches as they kick puppies, delivering speeches about world domination for personal gain, and often let their arrogance lead to their undoing. People recognize this kind of evil immediately and rise up in protest, banding together to resist. In the real world, most evils are much harder to see coming: they look reasonable at first, perhaps taking just a little bit from many people to get to some unexpected end. Once the effect is widespread enough that most people notice, you have a systemic problem that’s hard to get rid of. The evil that’s easy to identify is easy to fight. The one that initially looks like something good can betray you, and that’s why when we recognize it, we need to speak out against it.

Digital Restrictions Management used to twirl its mustache and kick puppies, making our devices nearly unusable, and we saw it and tried to drive it out of town. But now it’s changed out of its costume and just wants you to sign a little agreement, really just a formality, nothing you’ll even notice. It seems reasonable enough… until we realize what the fine print was telling us we couldn’t do.

It became harder for everyone to avoid these traps when DRM started to work better. Now, people unknowingly let their own software work against their interest—because most of the time, for most people, everything works pretty well. You can happily use it in approved ways on approved devices and not even notice it is there. (And sometimes user interfaces make it unclear how you would copy anything even if DRM wasn’t there to stop you.) The clunky, broken DRM more common in earlier software was easy to see as something standing between you and your own media. But smooth, well-functioning, nearly-invisible DRM is just tricking you into not noticing, silently ready to betray you as soon as you try to do something “forbidden”.

Maybe you don’t think this is so bad. You didn’t want to do anything illegal in the first place, you say, and if someone didn’t give you the right to copy, you don’t want it. But you don’t have to be a scofflaw to run into the limitations imposed by DRM. You did get the right to copy: the many exceptions to copyright are so important that they’re written into law. DRM takes those exceptions away from you and gives you only what someone else decides you ought to have. It neutralizes your rights to quote, criticize, teach about, and archive.

Try to copy a song to use on a new device, read an ebook via text-to-speech, extract a video clip, and with DRM, you can find yourself thwarted by the devices you thought were your own. It might be a small inconvenience to you—but what about librarians and archivists, teachers, artists and documentarians, journalists, or anyone with different needs, all of whom depend on having media that they truly have control over? Fortunately, DRM doesn’t stop everyone… yet. But even if that remains true, do we want a society where the only people who can stand up for your rights are the ones willing to break anti-circumvention laws?

The software you use, for digital media and everything else, should serve your interests. It shouldn’t spy on you, nanny you, or make choices for you against your wishes. But DRM lets someone else choose what your device does. If you can’t change what it does or even see what it’s doing, it doesn’t respect your freedom; it only respects its owner. And that isn’t you.

If DRM doesn’t respect anyone’s rights, why does it stick around? The market is broken and can’t respond well—because DRM mostly works. When you buy encumbered media, you might only discover its problems long after you’ve made your purchase. As far as the industry is concerned, you’re just another happy customer. When you bought it, you told the market it was what you wanted. When you silently stop buying intentionally broken products, it’s obviously because you’ve discovered “piracy”, and the lost sales might be used to justify even more oppressive restrictions.

You can take action to stop DRM from taking away your freedoms! Defective by Design’s Actions page gives you several options, including cancelling services that depend on it and telling them why, and instead supporting media labeled as DRM-free. And tell others to do the same—those restricting your rights have wised up, and no longer make the mistakes of cartoon villains. We can only stop the damage if we all see it coming together.

Why Creative Commons uses CC0

My last blog post for Creative Commons just went up today: why CC uses its own CC0 legal tool to release the text of its licenses into the public domain. You can read it there.

(It’s something I’m happy to have worked on while there, as there was some discussion about other possibilities such as CC BY; I think CC0 was the right choice. And also I can’t help but chuckle at being a zombie lawyer, blogging from beyond the staff listing.)

What happens to the CC licenses if something happens to CC?

A thought prompt from a post to the Wikimedia mailing list: how likely is it that Creative Commons fails, and if so, what happens to Wikimedia? The Wikimedia projects use the Creative Commons licenses (most use BY-SA; a few use BY and the CC0 tool). So do many other projects in the free and open culture space, many of which use these licenses for easy compatibility with each other. They depend on these licenses to provide part of their legal infrastructure. So what needs to be true about Creative Commons to avoid endangering this?

CC has a wider mission than simply the maintenance of the licenses, of course, but much of it could be suspended in a dire situation; nothing would move forward, but the core of its mission would not fall apart. But stewarding the licenses is the core of its job—so what has to remain true for that to happen (in this case, for the license-using community to go on unaffected)? It’s perhaps a thought exercise anyone involved with an organization should take on, even if that worst case never happens—what needs to stick around even if nothing else does, and what does that worst case look like? Here are the thoughts I proposed to the list, edited and slightly expanded on here.

Only the barest sliver of the organization needs to exist for the licenses to exist: someone willing to carry on the name and core mission, even if the organization became unable to pay anyone’s salary to work on it full time. While much of the other work is more resource-intensive, the continued maintenance and stewarding of the canonical version of the licenses does not strictly need to be.

The vast majority of the time, this task is simply keeping the servers running so that they remain accessible: the URL that people use to refer to the text should always give the license text. This itself takes some limited amount of time and funds, someone willing to makes sure the site stays up and the hosting bill is paid. 1 On rare and what I hope are increasingly infrequent occasions, it means revision of the license suite. 2 The main resource this takes is the time of people with the necessary knowledge and commitment to do it, and not even necessarily their full-time efforts. This comes with tradeoffs: it is a long, drawn-out endeavor under the best of circumstances, and our scenario is far from it. (For that matter, deciding when it needs to be done is a drawn-out endeavor in itself.) But I don’t see an inability to find capable lawyers interested in working on such a project, even if in spare time. I was thrilled to be brought on to the team, but it was after I had sent several messages already picking apart the licenses 3, while others particularly from the affiliate network and fellow-traveler organizations contributed detailed comments from their time. The hardest part would be finding someone to lead and coordinate without an existing full-time General Counsel (though even where no staff existed before, it is possible someone could be hired for the task). It benefits from an organization that can support paying for full-time work on it, but does not strictly require it, and should be a process that won’t need to happen again for quite some time. 4

Do the licenses require the organization at all? Yes—but not necessarily the organization in its current form. Someone who has the trust of the license-using community needs to be the license steward, and that someone should also be the rightful user of the CC name. The license text itself is under CC0—anyone can take it and republish it or modify it. But the name is not: it’s a trademark held by the organization, licensed for limited purposes. There are many years of work behind the name and its recognition; attempting to rebrand would be difficult and confusing and harm adoption. Far better to have the holder of the mark and the license steward with community trust be one and the same. (It is of course possible even now to have competing forks of the licenses, and this is a bad idea for the same reason forks of many types of standards with network effects are a bad idea. 5) There doesn’t need to be much to the organization to hold the authority to use the name; anything that counts as a legal nonprofit entity is enough. 6

It’s hard to say what would be considered enough trust and goodwill to be a suitable license steward, but a few thoughts. One is that it should remain a neutral organization, not beholden to particular interests that would sway license interpretation and future versions toward its ends. The 4.0 and earlier texts are fixed, of course, but there is room to influence the 3.0 and 4.0 license communities through the compatibility mechanisms, and future versions could be altered to the benefit of a particular community of adopters at the expense of others; an organization controlled by someone with interests that aren’t in line with the interests of other adopters is more likely to introduce these changes. (I even think that CC should remain independent of other license-using organizations that share common goals—for example, it’s better for Wikimedia to be a user of the licenses than to take CC under its wing, simply because it would influence the license development toward its use cases more than already happens, where it would be better for a steward to not be tightly tied to one type of user.)

Another is that it should keep development in the open, and take input from its community. The licenses’ usefulness depends largely on their adoption by the community; that community is best placed to see both where revision is needed and where change cannot be tolerated. An organization putting out a new version would be foolish to simply toss a new version over the fence, without engaging with suggestions and criticisms and making an effort to reach out to a broad swath of license users to figure out where changes could violate expectations; abandoning the communities would be a fine reason for the communities to abandon the licenses.

Finally, while it’s difficult to get financial support for many kinds of work that don’t involve discrete, easily-quantified, shiny new projects (not the sort CC specializes in), the licenses are easier to make the case for, both with foundations and the public—even in the worst case, I don’t think it would be difficult to get support for the bare bones described here.

So I’m not worried about the projects that depend on CC licenses. But the worst case is a case worth considering.

Notes:

  1. I’m excluding the tools surrounding the licenses, such as the license chooser, which is surprisingly complex. Even the deeds are built on a complex structure, though they could be adapted to be simpler (and easier to maintain) with some feature loss.
  2. I have joked that I will be happy to consult on the 5.0 revision from my retirement home, shaking my cane at the kids. This is about half a joke: I hope that by the time I am frail enough to need mobility aids there is something better available, like a robotic exoskeleton.
  3. Another joke: that it was easier for them to just hire me than to keep answering my email.
  4. The CC0 legal tool is another matter—that may come up again soon.
  5. Search for “license proliferation” for more argument here.
  6. A nonprofit’s assets, such as its trademarks, can generally be transferred only to another nonprofit.

Where to go from here

I’ve just recently had my last day at Creative Commons, where I worked as counsel for almost three years. I was hired early in the 4.0 drafting process (it is only half a joke that it was easier for them to simply hire me than to continue to answer my emails), staying to see it published and to support the translation and compatibility efforts. CC is a nonprofit organization, supported primarily by large foundation grants; for something that makes up a significant piece in building the open web, it’s more fragile than it perhaps should be, and in an effort to balance the budget many of the staff were let go. So here I am, using some of my newfound free time being to revive my dormant website. 1

Drafting a standard license is the sort of thing is it fantastic to do once. There simply shouldn’t be that many in the world, and they shouldn’t be revised often. And so despite the task being one I enjoy and am well suited to, I hope that I don’t do it again… at least, not for a long time. 2 But one of the other things I loved about the position is that when you mention what you do, you become a lightning rod for everyone with ideas about copyright licensing, and why it is or isn’t important. I had more good conversations with people who care about this topic than almost anyone else, and had to work through more unusual thought experiments (and actual problems!) than I would have in any other place. And, both because of the job and because I am the sort of person who wanted to do it, I’ve thought about and had conversations about several topics over again where I don’t think my position is the obvious one. I haven’t really written any of it down outside of mailing lists, if at all, and for someone who believes in openness, this is ridiculous.

Some one-line examples:

* The licenses are out, but CC’s work isn’t finished
* …but finishing a project and winding it down should be a sign of success, not failure
* “Pragmatic” vs. “ideological” is usually the wrong way to split up the debate
* You only find out what was wrong with your drafting choices when you ask people to translate them
* The post-copyright society is a myth, and pretending it isn’t doesn’t help
* Your legal terms should mean what they say and say what they mean
* No one knows how license compatibility works
* Nonprofits are the worst, except for most of the other things

I think I’ve spoken about all of these, but I am still terrible about writing in public, even for something as simple as posting to a mailing list. (I have a growing collection of thoughts, from bullet points to multi-paragraph fragments, in a text file where they do no one any good.)

A friend whose own writing I admire advised me to “lower the threshold of what’s postable”–so I will take that as my goal. Because I’d like to have these conversations with more people than just those I’ve met at conferences… and some less serious ones besides.

Notes:

  1. I am still looking for what to do next; your thoughts and suggestions are welcomed.
  2. (This is better than patent drafting–which I learned in law school and found an enjoyable challenge, especially for trying to draft as broadly as possible within the bounds of what is truthful and lawful to claim. But the only field I’d really be qualified to do this in is software, and I would prefer not to create any software patents at all.)

CC and the real and false “sharing economy”

Adapted from a post written to Creative Commons staff, on strategy.

CC is a project with a grand mission, and one that good infrastructure is necessary to help create. While the licenses are the best-known part of that infrastructure, they are just a basic set of tools
toward an end, not an end in themselves. For the infrastructure we build to be useful, it has to be integrated with everything laying on top of it. While CC has been successful with several of the individual sets of tools, it should do better connecting them to the things everyone else already knows that they care about.

Building in support for sharing and openness through CC is similar to building in privacy, security, and many other features of good technological citizenship: the kind of design decision that becomes important in the long term, and often hard to make after the start, because the business model or the basic functionality relies on making one of these impossible. You’re not going to do it unless you decide that it is a feature you want from the beginning because it’s going to make you better than the others. We should be able to convince people that it will: that when people contribute content to be shared, it should be *really* shared, and that openness is a way to create the web and the world and even the business you want.

Most of the popular “sharing economy” involves services and content that are not really shared: one entity has control of a resource, releasing control for some purposes that they like, possibly for payment, without needing the most inefficient of the old platforms to do so. Some improvement, sure. But those points of control still exist, who may shut down or limit the thing being “shared”–and then whatever was built on top of it dies, often both a community and its content. CC should not want this to be the new definition of “sharing”. Single points of failure fail. CC materials and other truly shared resources don’t die this way. They may be stewarded by whoever cares about them, and have the potential to take on new and unexpected lives; the communities who get the most use from them can keep them alive even when no one else is interested. The difference between real and false sharing is that with truly shared materials, there isn’t a necessary disconnect between the interests of those with control of a resource and those who use it and depend on it.

Restarting

You know how it is: you go to update your blog with a new post and notice something is slightly broken, and really you should update your WordPress installation more than once every few years. So you update–or try to, which requires some fiddling around with the settings of the server you’re using (from your web host; you’re not crazy enough to DIY). OK, *now* you update, and now everything has gone blank. You search for why this could be and the possible fixes and you try them and they don’t work, and you try things that no one has suggested and they also don’t work, and you feel slightly embarrassed about even describing the mess you have gotten yourself into.

And really you just wanted to quickly adapt an email with an idea that could stand alone into a blog post, and now it has been far more than the 15 minutes you planned, and you have something else to do, and you don’t blog again for 2 years because fixing the problem is still on your to-do list.

You know how it is, right?

So here is a new post, again (on a completely fresh install rather than an upgrade). Maybe I’ll even put up the thing I had intended to publish the first time. And some of the rest of the two years of backlog.