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.