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.

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.