More Money More Problems

September 1, 2010 11:51 PM

Paley & Doctorow argue over Non-Commercial licenses. Nina Paley (of Sita Sings the Blues fame), and Cory Doctorow, argue over the benefits of the Non-Commercial clause of Creative Commons licensing. (Via Boingboing)

Survey of opinions about the non-commercial clause.

posted by zabuni (40 comments total)

The only way to get the Internet interested in its own good is to have fights like these. But they should do it in Jello or mud. Paley vs. Doctorow could be the viral sensation that would save the Internet.
posted by twoleftfeet at 12:04 AM on September 2, 2010 [1 favorite]

I have to tell you, twoleftfeet, I've gone to bed with happier thoughts.
posted by Hardcore Poser at 12:47 AM on September 2, 2010 [1 favorite]

From what I can tell, it seems like there's not enough economic difference between -NC and -SA to motivate publishers or those who would borrow your work. I don't think that many people understand the problems with -NC, and largely ignore them.

For example, the community college I work seems to believe we can't fall under -NC because we're nonprofit. If anyone has a link clearly explaining whether this is true or not, it would greatly help me edify certain people tasked with educating faculty on the matter.
posted by pwnguin at 12:51 AM on September 2, 2010

steampunk
posted by micklaw at 1:07 AM on September 2, 2010

Aw, man, here I was hoping that they would debate something more meaningful, like hypocrisy versus cultural appropriation by white people!
posted by ShawnStruck at 1:22 AM on September 2, 2010 [3 favorites]

The non-free Creative Commons copyright licenses are farcical. YouTube's licensing UI (which the cc organization described as incredibly exciting) brazenly offers uploaders not only a Non-Commercial option but also even the "Noncommercial-No Derivative Works" option, despite that YouTube is obviously a commercial ad-supported website with a Terms of Service which says "For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels."

So, when you upload your video to YouTube and select the BY-NC-ND license, it appears that you must grant them more rights than you're granting everyone else. But, if you instead publish your video on your own website with a BY-NC-ND license on it, aren't other people going to be allowed to upload it to YouTube anyway? If so, what's the point? If not, what's the point? What is the point?

The point in offering these non-free licensing options, I think, was to encourage more creators who are terrified of commercial exploitation to loosen their deathgrip and allow at least a little bit of sharing. Better than nothing, right? Sadly, the effect has been that two thirds of all CC-licensed works use the Non-Commercial clause and are thus generally legally unsuitable for use in Wikipedia or any other free projects which include "able to be sold" in their definition of freedom, while at the same time, more than a few of these NC-license-using artists have been surprised and disappointed to find that their work is being commercially exploited by internet advertising despite their request that it not be used commercially, and that the very people who wrote and promote these licenses actually champion ad-subsidized sites like YouTube as the primary venues for sharing CC (including NC) licensed works.

My advice to artists is to waive copyright and make it as easy as possible for everyone to have access to your work for free, and also to pay you what or if they want or are able to.

Archive.org and BitTorrent are good allies for the former; KickStarter, WePay, PayPal, etc can help with the latter.
posted by finite at 2:01 AM on September 2, 2010 [8 favorites]

My advice to artists is to waive copyright and make it as easy as possible for everyone to have access to your work for free, and also to pay you what or if they want or are able to.

Wow, that's fantastic advice!

You know what I found?

That doesn't work.

Any other advice?
posted by jscott at 2:50 AM on September 2, 2010 [2 favorites]

Ahhhh, it's late and you're probably thinking you're "helping", and since I'm going to be a little busy across the next few days, I'll be a little more explicit in what I'm saying here. Divebombing a thread, even a silly one like this (Doctorow AND Paley? Spare my heart) is in poor taste and unhelpful.

My beliefs, coming from my experiences with two CC-licensed films and a number of projects which people might subsume under free culture or at least "giving a lot of things away" is this:

Creative Commons is fast law, a rather slippery collection of licenses that are all range of flawed, weird, barely legally tested and shoehorned where they shouldn't always go. But they exist because the current copyright situation has become so corrupt and wrecked that people are cobbling together alternate solutions to get away from some terribly immoral situations current law provides for. In this way, CC is an appreciated effort.

I have found that parts of CC fail under load - in the rush to be a part that plugs into the Copyright Law Machine and still be organic and run on solar energy, it ends up perpetuating the very clunky old-school thinking about possible uses for content and creative works that it intends to liberate. For example, CC assumes that a remixed or modified work is something that will be done to it consciously by an entity, as opposed to where a significant percentage of remixing/reuse is being done automatically, by both clients and servers. Copyright cares where data is and assumes a "work" - CC tries to make it easier to use that "work" but in doing so falls into the same trap.

I use NC in my license just to continue to be a part of the conversation around my creations - if someone truly is concerned about the repercussions of using the material, they can contact me, and chances are I will be extremely flexible about usages. Is it a clunky thing that makes a transaction take a day or two instead of being instantaneous? Yeah. Do I mind? No.

--

There is also, unfortunately, this shadowy undercurrent of beating down artists and creators in the process of all this free culture stuff, as well. I'm talking about a thematic "you won't sell well anyway, so give it away" or "I have decided how you should sell and distribute your works, and it'll be a small matter of you seeing the light for us to proceed on plan." I see that happen. I see it happen a lot.
posted by jscott at 3:16 AM on September 2, 2010 [18 favorites]

I wrote a little web app back in the late 90s that I decided was probably good enough to supplement my income. At the time, a much higher proportion of stuff was for sale, as opposed to being open-source, or being licensed according to various Creative Commons flavours. That didn't stop me from getting quite abusive emails from people demanding that I make my work freely available, but that's neither here nor there.

And my little web app did quite well. People were willing to pay $150 to download something they could use to add a novel feature to their commercial websites. I can remember the excitement when I got my first order (from the French military police, no less!) And for non-commercial use, there was a separate version which came with conditions, which were basically 'you don't take my URL and other contact details off the About tab'. I probably should have had formal legal wording written up, but for my purposes a couple of sentences of intent seemed to work ok.

After about a year, during which I made enough from this little app for a down-payment on my first house, I decided that maybe it was time to loosen things up and just let people pay whatever they thought was a 'fair' price. I reasoned that given that enough people were willing to pay good money for this thing, a 'pay what you like' model would just be a switch to smaller payments, but much more of them.

And you know what, my income instantly dropped by 95%. Lesson learned: if you offer something for free or nearly-free, that's what they'll think it's worth, in most cases. Giving stuff away won't make you a living, although if you're lucky you might get the occasional beer.
posted by le morte de bea arthur at 3:28 AM on September 2, 2010 [15 favorites]

My advice to artists is to waive copyright and make it as easy as possible for everyone to have access to your work for free, and also to pay you what or if they want or are able to.

Sorta weird to be editorializing in a post like that.
posted by Ironmouth at 3:45 AM on September 2, 2010

All I want to know is why anyone listens to what Cory Doctorow has to say about anything. Is being featured in an XKCD comic on the same level as an advanced degree these days?

No really, I'm seriously curious about that. Why should a young adult sci-fi author command the fawning attention of the entire internet on subjects anything other than, you know, young adult sci-fi? I'm sure he's a fine author, but why in heaven's name does he get invited to teach courses at major universities?

Because as far as I've been able to tell, Doctorow is a marginally contrarian blowhard who doesn't understand jack shit about copyright, either its law or its history. He's a utopian prognosticator, not a serious commentator, but everyone treats him as if he were.

I just don't get it.
posted by valkyryn at 4:37 AM on September 2, 2010 [6 favorites]

Being a utopian prognosticator and a serious commentator are not mutually exclusive.
posted by His thoughts were red thoughts at 4:56 AM on September 2, 2010 [1 favorite]

Not to mention incredibly hypocritical, as everyone who remembers the This Personning episode knows.
posted by waraw at 4:59 AM on September 2, 2010

Not to mention incredibly hypocritical, as everyone who remembers the This Personning episode knows.

One of Cory Doctorow's mods threw a cyber-tantrum against an ex-lover. Therefore, Cory Doctorow is hypocritical when he advocates against restrictive copyright. Am I missing something?

I believe the reason that YA SF author "commands the fawning attention of the entire Internet" when he discusses Creative Commons licenses is because - unlike jscott - Doctorow has found a way to make them work. At least, so he claims. And people are hopeful that he might help them find a way to make it work too. [The wisdom or foolishness of that hope being a separate question.]

What was your alternate theory? Hypnotic commands embedded in his HTML?

(I loved Little Brother. I'd read it again and again...)
posted by Joe Beese at 5:42 AM on September 2, 2010

There is also, unfortunately, this shadowy undercurrent of beating down artists and creators in the process of all this free culture stuff, as well. I'm talking about a thematic "you won't sell well anyway, so give it away" or "I have decided how you should sell and distribute your works, and it'll be a small matter of you seeing the light for us to proceed on plan." I see that happen. I see it happen a lot.

So do I. It's called the internet. The culture online is officially, and I fear irrevocably, that it should all be free, and the rest is finding the spin to justify your trying to get it for free ex post facto. The "artists charge too much" argument existed about five minutes after Napster was created. "Why should I pay for a whole album of only two good songs?" Sprung from MP3. I realize the market and the entire paradigm of digital commerce is changing everything, but I think maybe people are grated by folks like Cory Doctorow because padded, bloated quasi-intellectual screeds meant to fluff up the single sentence "I want free shit" is so aggravating.

le morte de bea arthur, I feel for you greatly. Anyone remember the "Indie Bundle" that came out a few months back? A bunch of indie game developers, who were already selling games at an under-$20 price point, released a bundle of their games at a pay-anything rate, with the proceeds going to charity. I would like to repeat that- you could pay anything, even nothing. Over a quarter of the downloads for the package were pirated.
posted by XQUZYPHYR at 5:51 AM on September 2, 2010 [2 favorites]

I didn't specify hypocritical on the subject at hand. Hypocritical regarding opennness and transparency are absolute requirements for others, but not his own org. Sorry for the derail, but his failure to address the stink in his own house on the subject he railed against others so often for, pretty much destroyed any whuffie he once had.
posted by waraw at 6:32 AM on September 2, 2010

So disappointed that this is not a recently-unearthed argument between Grace Paley and E.L. Doctorow.
posted by chesty_a_arthur at 6:51 AM on September 2, 2010 [1 favorite]

Personally I can't think of a circumstance in which I'd use a CC-*-NC license for my own work, but clearly there are a lot of people who have determined that they want the use of their work to be restricted in this way. Just like in the eternal GPL vs BSD license flame war, it's the height of arrogance to suppose that nobody on the other side has reflected on the actual consequences of the various licenses.

Instead, they disagree on premises, such as whether in general the benefit from a commercial derived work that is CC-SA (a benefit to people in general) is greater than the benefit from a commercial work that purchased an exception to a CC-NC license (a benefit to the original author in particular). Figuring in to this are other factors, such as how often the former and the latter are actually going to occur in practice.

It does, however, surprise me to learn that some people think NC is sign the author hangs out to indicate that the work is available for commercial use, if the price is right.
posted by jepler at 8:02 AM on September 2, 2010

I believe the reason that YA SF author "commands the fawning attention of the entire Internet" when he discusses Creative Commons licenses is because - unlike jscott - Doctorow has found a way to make them work.

Oh, I didn't want to give the impression they don't work for me. They work for me better than if I copyrighted the works. But that doesn't mean I pretend they're great.
posted by jscott at 8:49 AM on September 2, 2010

Why is it I get the sense that some view those who wants to be able to use someone else's work to make money for themselves in some way as less scurrilous than those who want to make money off their own work? What a skewed, weird perversion of things that third-party exploiters might be assumed to be entitled to profit off other's work-products while the producers of those work-products themselves are viewed as somehow mercenary for hoping to profit off those same work-products.
posted by saulgoodman at 8:50 AM on September 2, 2010 [2 favorites]

> Why is it I get the sense that some view those

You Selling Stuff: your rank greed;

Me Selling or Giving Away Your Stuff, for My Gain: my exercise of my self-expression.

While there are lots of nasty psychological elements in operation here, part of the rationalization seems to be a feeling that distribution (especially of someone else's work) is itself a creative act.

"Let's blow the dam, and bring water to the townspeople (the townspeople will LOVE ME for this)!"
posted by darth_tedious at 9:12 AM on September 2, 2010 [1 favorite]

"The "artists charge too much" argument existed about five minutes after Napster was created. "Why should I pay for a whole album of only two good songs? . . ."

I can't speak for older generations, but these arguments have been around at least as long as the advent of CD's (and the concurrent move away from vinyl singles). These two problems were a significant motivation to join clubs like BMG.
posted by oddman at 9:29 AM on September 2, 2010

Why should a young adult sci-fi author command the fawning attention of the entire internet on subjects anything other than, you know, young adult sci-fi?

If not a working writer who spent years working for the EFF, then who does get to talk about IP and culture? Would an IP attorney be OK? Would anyone else?
posted by Zed at 9:40 AM on September 2, 2010

They work for me better than if I copyrighted the works

I suspect you mean if you only copyrighted your works, because, of course, you do copyright your works, jscott! The CC-NC license is a copyright license. Your copyright is what protects your work from commercial exploitation by Wikimedia et al. (Which, I'm aware, is not something you see as a bad thing.)

But, do you believe that everyone is or isn't legally allowed to upload your NC-licensed works to ad-supported sites like YouTube? CC says they are. Some artists I've talked to who use NC licenses were surprised by this. My point boils down to: using cc non-commercial means saying yes to youtube and no to wikipedia.

I regret the derail at the end of my previous comment, sorry about that.
posted by finite at 9:42 AM on September 2, 2010

On reflection, actually, I'm not sorry about that.
posted by finite at 9:50 AM on September 2, 2010

I use NC in my license just to continue to be a part of the conversation around my creations
...
They work for me better than if I copyrighted the works.

I don't understand this remark. CC licenses are copyright licenses. If you don't hold copyright in a work, there are no rights for a CC license to grant to a potential licensee.

Do you mean that you find the CC licenses better than offering to potential licensees only a commercial-use-in-return-for-compensation copyright license? Alternatively, do you mean that you find the CC licenses adequate and convenient, but if you were offered the free services of an IP lawyer you'd have them draft you an alternative copyright license that grants free reuse rights but with some sort of mandatory advise and consent clause?
posted by RichardP at 10:05 AM on September 2, 2010 [1 favorite]

Oops, sorry finite, I notice I've said some of the same stuff as you just did. That's what I get for taking a phone call in the middle of drafting a comment.
posted by RichardP at 10:07 AM on September 2, 2010

If not a working writer who spent years working for the EFF, then who does get to talk about IP and culture? Would an IP attorney be OK? Would anyone else?

An actual formal education in any of the things he spends so much time talking about would vastly improve his understanding of said subjects, I believe.
posted by Amanojaku at 10:10 AM on September 2, 2010 [2 favorites]

You didn't answer my question. Who is qualified? What constitutes a formal education? A law degree? Is there a certification necessary for credentials as someone creating culture, too? An MFA, maybe?
posted by Zed at 10:36 AM on September 2, 2010

waraw: "Hypocritical regarding opennness and transparency are absolute requirements for others, but not his own org."

"His own org" is a weblog with six contributors and a very large reader base.

The organizations that he argues should be transparent are the sorts of organizations that have employees and market share.
posted by LogicalDash at 11:39 AM on September 2, 2010

One of Cory Doctorow's mods threw a cyber-tantrum against an ex-lover. Therefore, Cory Doctorow is hypocritical when he advocates against restrictive copyright. Am I missing something?

Fellow editor, not mod. He rails against other people sending embarrassing material to the memory hole, but when one of his friends did it, it wasn't a problem.

(I'm actually fine editing the past; it was the hypocrisy that was icky. But then, nobody over at boingboing seems to complain about publishers editing their own sites any more, so maybe they learnt something).
posted by Leon at 12:44 PM on September 2, 2010

Hypocritical regarding opennness and transparency are absolute requirements for others, but not his own org

How dare he demand higher standards of accountability and transparency from governments and multi-national corporations than from a very popular weblog?!
posted by straight at 12:49 PM on September 2, 2010 [1 favorite]

How dare he demand higher standards of accountability and transparency from governments and multi-national corporations than from a very popular weblog?!

You've never heard the expression "be the change you want to see in the world"? Or even just "lead by example"?

boingboing was turning over $1m+ in ad revenue in 2006. I've no idea what it might have hit by now, but it is a commercial media outfit, in just the same way as your local newspaper is.
posted by Leon at 12:57 PM on September 2, 2010

My blog is CC BY-NC-SA. How I want it to work is this: If somebody thinks that stuff on my blog is useful, they can repost it on their blog or on wikipedia or whatever. People copy and paste my stuff from wherever to wherever, and as long as it stays free and cited, it's cool. But if someone wants to print up a book of the Important Things I said on my blog and sell that book, then I should get paid. Is that not how it works?
posted by Galaxor Nebulon at 1:16 PM on September 2, 2010

and I guess I'd be okay with posting to youtube because the stuff stays free to the end-user. Free, cited, and sharealike. But I might've only been okay with that because I hadn't thought it through. If someone made their primary living by distributing, for free, an ad supported newspaper consisting entirely of stuff I've written, then I might want a cut of that money. And that's essentially what youtube is doing...
posted by Galaxor Nebulon at 1:19 PM on September 2, 2010 [1 favorite]

You didn't answer my question. Who is qualified? What constitutes a formal education? A law degree? Is there a certification necessary for credentials as someone creating culture, too? An MFA, maybe?

If he wants to talk about law and policy, and he obviously does, he should probably have some education there. A law degree wouldn't hurt. And before you accuse me of being elitist or condescending, the problem is not that he doesn't have "JD" or "Ph.D." (or hell, even "B.A.") after his name. No, the problem is that it is manifestly obvious that Doctorow doesn't have a clue what he's talking about.

For example, and off the top of my head:

In the FPP link, Doctorow references a column he wrote for The Guardian, where he asserts that intellectual property did not really exist as a metaphor until the 1960s, when it was adopted by WIPO.

This is just false.

Intellectual property, in various forms, has been a subject of heated political and cultural debate for about five hundred years. Which makes the rest of his article entirely pointless, as it's premised on the idea that the term represents a recent to "shoehorn" culture into a property metaphor to fit the desires of the copyright industry. Ignoring the history, or simply being ignorant of it, which seems more likely, makes his argument not even wrong.

So it isn't just that he doesn't have any formal qualifications; he isn't even informally qualified. As far as I can tell, the only thing he has going for him is that happens to be capitalizing on the fact that there are geeks with money. If he wanted to talk about web entrepreneurship or how to make money using new media, I'd be all ears, as he obviously would have a thing or two to say about that. But discussions of copyright policy are simply out of his depth.
posted by valkyryn at 1:38 PM on September 2, 2010 [3 favorites]

I saw someone mention Napster. I heard one analyst say that the PC boom was fueled by file sharing. Win 98 was old and Win2k was about to be released, when file sharing on Napster suddenly convinced people they needed new PCs with bigger hard disks to store all that pirated music. And as that demand grew, people wanted faster, higher bandwidth internet connections.

So basically what happened is that the Intellectual Property owners had all their royalties stolen by hardware manufacturers. Pirates took all the IP goods for free, but really, if you look at it, you might consider that they paid about the same for their music as if they had bought it on CDs. But instead of the money going to record companies, they spent it on PCs and ISPs. The computer manufacturers and ISPs were well aware of this, and used it to fuel their growth, and also it was in their interest to undermine traditional IP owners, who were monopolizing the consumers' entertainment dollars.
posted by charlie don't surf at 1:53 PM on September 2, 2010 [1 favorite]

Leon: "boingboing was turning over $1m+ in ad revenue in 2006"


I don't think it's the amount of money they make that makes a difference, even assuming your figures are accurate. When the organization consists of six people posting stuff on a website they can pretty much do what they feel like. They're already "transparent" in the sense that everyone who works there knows what their company is doing. Perhaps if BoingBoing had any meaningful impact on other people's livelihood and well-being, there would be an argument that they should maintain transparency.
posted by LogicalDash at 2:18 PM on September 2, 2010

even assuming your figures are accurate

Just to clarify, my figure is hearsay.
posted by Leon at 2:57 PM on September 2, 2010 [1 favorite]

My blog is CC BY-NC-SA. How I want it to work is this: If somebody thinks that stuff on my blog is useful, they can repost it on their blog or on wikipedia or whatever.

See, that's the thing, they can't post it on Wikipedia or whatever. Because Wikipedia is not noncommercial -- someone might print up part of Wikipedia and sell it (and they've done exactly that, Wikimedia and others).
posted by mendel at 9:34 PM on September 2, 2010