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.
- 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. ↩
- 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. ↩
- Another joke: that it was easier for them to just hire me than to keep answering my email. ↩
- The CC0 legal tool is another matter—that may come up again soon. ↩
- Search for “license proliferation” for more argument here. ↩
- A nonprofit’s assets, such as its trademarks, can generally be transferred only to another nonprofit. ↩