Debate with Nina Paley about noncommercial licenses

Recently, Nina "Sita Sings the Blues" Paley and I conducted a protected email exchange debating the merits of the Creative Commons "noncommerical" licenses (like those used on my novels and here at Boing Boing). It was an instructive and sometimes productive debate, and Nina's edited the thread and posted it.

Here's my perspective: the purpose of any cultural policy or regulation should be to encourage a diversity of both participation and works (that is: more people making art, and more kinds of art being made).

ISTM that your assertion amounts to: "Whatever forms of participation that come into existence as a result of the capitalization opportunities that accrue in an exclusive rights regime, they are dwarfed by the works that lurk in potentia should such a regime perish."

IOW: we unequivocally get *some* participation in culture as a result of exclusive rights regimes, some of which would not exist except for exclusive rights. You believe that if this regime and the works that depend on it was to vanish, the new works that would come into existence as a result would offset the losses.

I don't know how either assertion could be tested. We both have firsthand experience of both modes of creativity -- I know of works that wouldn't have been capitalized absent the higher returns expected in the presence of exclusive rights; I also know of works that could only have been made in their absence.

Paley & Doctorow argue over Non-Commercial licenses

• [Raines Cohen]

  I appreciate this conversation for getting at one of the issues I’ve had about using CC licenses for some of my own work.

  To me, the whole point of a CC “some rights reserved” license is to make it easy for someone to use my work and incorporate it in their own, redistribute it through their channels, and the like.

  However, by allowing everybody equal access, it removes the step of contacting me for permission, which to me is a piece of the value chain – even if I grant permission to everybody who contacts me, the fact that they’ve reached out creates opportunity to build a relationship. Even if it starts as a purely transactional/business relationship, it can go deeper and lead to other forms of connection.

  CC-ShareAlike and the general idea of CopyLeft carry with them propagation of the underlying ideology, but they still rely on the licensee’s good faith and equality of relationship — if someone embeds my CC-NC or CC-SA work in a proprietary product that only their paid licensees/customers get to see, will I ever know it?

  • [Caroline]

    Regular old copyright has the same problem, though. Somebody can use your “all rights reserved” work without asking permission, and if you never find out about that use, they’ll face no consequences.

    In the linked discussion, Nina makes the point that requiring contact can be a real barrier to free use of your work. People will assume that it will be too expensive, or too legally complicated, and will just decide not to use your work rather than try contacting you for permission. Or there could be a language barrier, or some other situation that would make it difficult for someone to contact you.

    I agree that I’d prefer people who use my “some rights reserved” work contact me and tell me about it — just because it would be cool to hear what they’re doing. And if I used someone’s some-rights-reserved work, I’d be very likely to drop them a line just as a courtesy, to say “Your work is super cool, look what I did with it.”

    But I agree with Nina that requiring people to contact you for permission before they can use your work is counterproductive, if your goal is to make your work freely available for other people to use.

    You can encourage contact by putting up a note with your freely available stuff, saying that you’d appreciate it if people let you know how they’re using it. And the CE mark, as explained, would also encourage people to contact you, for your endorsement.

    • [Nina Paley]

      Well said, Caroline. Many people who use “Sita” in projects contact me after in or in the midst of their projects: “look at this cool thing I did/am doing, I hope you like it, wanna collaborate on getting it out there?” (I usually have to say “no,” as is my right.) That’s different from my requiring contact and permission before they even get started.

      Raines wrote:
      

      even if I grant permission to everybody who contacts me, the fact that they’ve reached out creates opportunity to build a relationship.

      Relationships are built when others interact with the work; they’re inhibited when permission is required to do so. The permission requirement ensures the relationships are imbalanced, because one side has far more legal power than the other. I still enjoy the special, inalienable status of “author” of my work; no legal force can change that.

• [Anonymous]

  There’s literally no one who plans for life + 70 years of future returns as part of the “do I create this copyrighted work” process.

  Maximum length for an acceptable return on investment is five years. If an investment doesn’t show a profit in five years, it is not made. Copyright would have the same beneficial effect if it were exactly five years long from date of creation.

• [vintermann]

  Nina,

  What would your thought be about a license that was simply Share Alike, but with a requirement that if the authors didn’t have the creator’s endorsement, they would have to inform the audience of that (like in the program of the theatre adaption, or on the front of the book cover).

  This would work around the problem of customers buying un-endorsed, exploitative works because they didn’t know the mark existed – something I suspect would be a problem for many years even if the mark took off today.

  On the other hand, this may be an undue burden on works that build on many other works (“We are obliged to inform you that this work builds on work by A, B, C, D and E, but E has not endorsed this work” [because they couldn't reach her]). Kind of like the arguments against the original BSD license.

• [daneyul]

  ISTM that writing “it seems to me” isn’t that difficult, is it?

  IOW, net acronyms are better in short, quick, relatively casual posts–I find them distracting and somehow trivializing in this type of extended, thoughtful exchange.

  Of course, that’s just IMO.

  • [Tim]

    I felt that you could have used some more H in your O.

• [Beelzebuddy]

  There’re two things I’d like to add to this conversation.

  The first is the role of the -SA clause. Nina, you mention early on that Share Alike licensing can restrict artists from making deals with non-SA anthologies, etc. That ain’t necessarily so. As the creator, you don’t have to abide by the SA. You can license your work in traditional closed ways if you want. What -SA really does is give you that control, but only when it counts. School plays don’t need to contact you to get your permission, and shouldn’t have to, but someone seeking to make a profitable use of your work will. Case in point, SStB: the Comic Book negotiations. Despite giving it away for all and sundry, you still retained absolute control exactly when you needed to.

  The second is a general disparagement of the CE mark. Not that it’s not a good idea, I just have a really hard time imagining anyone important bothering to give a shit. Should it somehow become worthy of receiving shits, the corporations who routinely jack art and claim it’s theirs would also put on a CE mark and claim it’s theirs. Furthermore, since even the blandest of pap-spewing consumerism factories can lay claim to everything they make, any generic goodwill the CE mark might accrue will be immediately jacked for profit. There will be CE marks on EVERYTHING. Like chemicals which are known to the State of California to be potentially hazardous to your health, it’ll lose any real meaning.

  Stick with the -SA clause. It’s a poison pill to those who’d like to plagiarize for profit, an encouragement to those who want to plagiarize for fun, and it’s already been proven effective via the GPL and related copyleft licenses.

• [Caroline]

  So I am confused. If I understand correctly, the CE mark doesn’t do anything to legally prevent someone from selling your work and not cutting you in for anything. The actual license would effectively be a Creative Commons Attribution license. They would just not be allowed to put the CE mark on what they’re selling unless they get your endorsement. And the idea is that people would see that it was being sold without the CE mark, and decide not to buy it. And if they do want to use the CE mark, they still have to contact you and negotiate terms (unless you’ve given blanket endorsement for their use).

  So I guess the idea is, for uses that are technically “commercial” but not “industrial” — like a school play, or the Sita Sings The Blues statue — they won’t need to bother contacting you, because the lack of a CE mark wouldn’t hurt the person using your work.

  But for uses that are “industrial” in that sense, like a film adaptation of your novel, the lack of a CE mark would hurt them because your fans would disapprove. So they would decide to contact you, and you would negotiate a share in the profits in return for giving them the right to use the CE mark (or you could waive a share in the profits, and still let them use the mark to signal your approval).

  So if you used a CE mark for “Little Brother,” and a big film studio made an adaptation, did not get your endorsement and isn’t paying you any money, your only remedy is to tell your fans not to go see it. You have no legal remedy to make them pay you. I guess you could sue them under “moral right” if you could prove that their adaptation was derogatory, but that could be hard.

  And if you want to make pre-emptive blanket endorsements of some uses but not others, you’re right back to the same problem as with the -NC license: how do you legally define the difference between the school play and the major film adaptation? If there’s a good way to do that, why not just make it a variation of the -NC license?

• [Nina Paley]

  Caroline – I use the CE mark with copyLEFT (share-alike) licenses, which prevent abusive exploitation. You can certainly also use it with restrictive, unFree licenses as well – or plain old copyright. But in combination with copyLeft, it allows maximum Freedom for everyone with secure revenue opportunities for the creator.

• [wetzel]

  I have a creative commons publishing company that is doing pretty well. The development of the content has been going on since 1994, and at this point, it is a very large body of work. We look at the content from an object oriented programming model and think of the various modes of presentation as methods of the content objects. We make our money on the printed methods. Everything is licensed creative commons attribution sharealike which is less restrictive than the noncommercial license, so commercial enterprises are welcome to make use of the work for their own purposes as long as they follow the license.

  A few years ago, we had to choose between the more free CC license and the noncommercial license. We chose the more open license for various reasons. One big advantage is that licensing with the less restrictive license makes our own work compatible with Wikimedia. A noncommercial CC license is not compatible with the GNU license or ‘sharealike’ from the more open license of Wikimedia which for our kind of project is very useful.

  I think a bit of game theory is helpful to understanding the competitiveness of the commercial compatible CC license. My own market is easy to identify and relatively small. There is no possibility another company could out-compete me with my own stuff. We have the project! How do you compete with a CC licensed commercial project that has an open license? How could the third party company project the return on investment of their plan? The 3rd party company that tries to run with it would have no advantages over a 4th party to do the same thing and fewer advantages than we do, the originators of the project, who have the deep files and the energy.

  Some might make a buck from my work, maybe even more than me, but they won’t be able to compete directly in our areas of focus.

  The business position of the CC sharealike license is stronger than many may think, it really depends on the project. For something like a song, it’s hard to beat traditional copyright, but for many projects choosing the less restrictive CC license does not necessarily turn one into a babe in the woods.

• [Anonymous]

  Hi Cory,
  I think you are being “too conservative” here, I truly believe Nina is right: CE + copyleft sounds great!
  Sleep on it, and give it a try!
  Davide

• [Anonymous]

  protected? or protracted?

• [mtlwriterguy]

  This debate is fascinating, though I must admit that I didn’t go all the way through the debate.

  In essence, what Nina seems to be promoting with the Creator Endorsed mark is an intellectual property version of the “heksher”, the kosher-certification mark you see on many food products.

  There are numerous hekshers, the OU of the Orthodox Union, the MK of Montreal Kosher, COR of the Canadian Kashrut Council, etc. etc. Food manufacturers agree to be inspected by a kashrut-certifying organization and abide by its interpretation of Jewish dietary laws. In exchange, they get the right to print the organization’s heksher — a registered trademark — on their packaging.

  Hekshers generally only have meaning to practicing Jews who know what they stand for and who know how to interpret their sub-forms (whether the food is dairy, meat or neutral, for example). They are not state-sponsored and are protected only by trademark (and possibly fraud) law. No one can stop you from creating your own heksher, and in fact, there are some hekshers of dubious provenance that are generally not trusted by more orthodox Jews.

  The problem with a system like this is the end-user has to CARE. Orthodox Jews believe God has mandated what they should and should not eat and have an overriding reason to care about these little symbols. To most people, they are indistinguishable from the clutter of trademark, organic certification, recycled paper content and manufacturer’s marks stamped all over most packaged goods.

  I don’t think most consumers (“readers,” or “viewers” in the old world) of art and entertainment care that much about provenance. God, for the most part, isn’t watching them, and they will consume what they want to consume (and re-use what they want to re-use) regardless of certification marks, CC licenses or all the rest of it.

• [geekd]

  There is some seriously dense debate going on in this article.

  I’m in a band. My band’s work is licensed Creative Commons -NC, as argued in this article. My intention with that license choice is to prevent someone from selling a CD of my band’s songs (or including my band’s songs) without giving us our fair share. I certainly do not wish to stop other bands from covering my band’s songs, even if they charge admission.

  It’s an argument that will go on. HOWEVER, I love the fact that the CC license exists, and that we can release our music formally under it (which we had been doing for years, informally). It gives us the freedom to “give it away”, without the downside that someone else can “sell us” without giving us a cut.

  -Dave
  http://theexperiments.com

  • [Anonymous]

    Standard copyright covers you anyway; and it;s your choice how you wish to enforce your own copyright (IP is civil, not criminal).

    So really whether it’s CC, or just C; doesn’t change how people are able to use your content, it’s merely an advertisement that it’s open, rather than a formal permission.

• [shmageggy]

  Agreed. In fact, this reminds me of historical accounts of intellectuals engaging in long distance debate via postal mail.

  It seems, unless I’m misunderstanding something, that the Mark isn’t mutually exclusive, or even a competitor to CC or other free licenses, but rather a complimentary tool. The idea being that, were the Mark to gain ubiquity, seeing works being used without it (as in the David Byrne scenario Nina mentioned) would raise eyebrows.

• [allennoble]

  I had to look up ‘venerable’ just to be sure she wasn’t calling you an old geezer..

• [marco antonio]

  I’m absolutely loving this well thought-out, intelligent argument between Nina and Cory. Lots of food for thought, valid points, and none of the noise and clutter of emotional/knee-jerk/one-sided attitudes you see nowadays on public debates.

  Well done Cory and Nina, got my brain tickin’ and ticklin’. :)

• [serraphin]

  My brain’s possibly not working today (I’m actually sick, so have an actual reason for once).

  I’m not quite understanding the difference between the CC licence and the mark Nina talks about? I understand the CC licences well enough, what does this mark purport to do that’s “better” (and I appreciate “Better” is dependant on point of view)?

• [Caroline]

  Nina — thanks for the explanation!

  So the method by which copyleft protects you from exploitation is that anyone who uses your work has to make their product available under the same copyleft terms — is that right? I think that’s actually a pretty good legal distinction between the “school play adaptation” and “major film studio adaptation” cases: people who would be willing to do that, and people who wouldn’t. (If the major film studio was willing to release its adaptation under share-alike terms, that would change the situation substantially.)

  The CE mark makes a good bit more sense, then. It’s not intended as a method of preventing exploitation of your work (that’s the job of your copyright terms); it’s a way of particularly encouraging use of your work which you think is awesome, and/or from which you share in the profits.

  Also, you’ve convinced me to change my CC Attribution-Non-Commercial licenses to share-alike licenses. That seems like a better way of accomplishing what I intended to accomplish with the -NC license.