[rohrpost] Creative Common Misunderstanding

[Armin Medosch]

On 9 Oct 06, at 23:36, Florian Cramer wrote:

> [Leider komme ich wahrscheinlich nicht mehr dazu, meinen Text ins
> Deutsche zu übersetzen, und bitte daher um Nachsicht auf dieser Liste.
> -F]

es ware aber toll, diesen text auf deutsch zu haben. freiwillige vor ...

a.


> 
> 
> The Creative Common Misunderstanding
> 
> 
> Lately, the growing popularity of the Creative Commons licenses has
> been counterpointed by a growing amount of criticism. The objections
> are substantial and boil down to the following points: that the Creative
> Commons licenses are fragmented, do not define a common minimum standard
> of freedoms and rights granted to users or even fail to meet the criteria
> of free licenses altogether, and that unlike the Free Software and
> Open Source movements, they follow a philosophy of reserving rights of
> copyright owners rather than granting them to audiences. Yet it would
> be too simple to only blame the Creative Commons organization for those
> issues. Having failed to set their own agenda and competently voice
> what they want, artists, critics and activists have their own share in
> the mess.
> 
> In his paper "Towards a Standard of Freedom: Creative Commons and the
> Free Software Movement," free software activist Benjamin Mako Hill
> analyzes that "despite CC's stated desire to learn from and build upon
> the example of the free software movement, CC sets no defined limits and
> promises no freedoms, no rights, and no fixed qualities. Free software's
> success is built upon an ethical position.  CC sets no such standard."^1
> In other words, the Creative Commons licenses lack an underlying ethical
> code, political constitution or philosophical manifesto such as the Free
> Software Foundation's Free Software Definition or Debian's Social Contract
> and the Open Source Initiative's Open Source Definition.^2 Derived from
> each other, these three documents all define free and open source software
> as computer programs that may be freely copied, used for any purpose,
> studied and modified on source code level and distributed in modified
> form. The concrete free software licenses, such as the GNU General Public
> License (GPL), the BSD license and the Perl Artistic License, are not
> ends in themselves, but only express individual implementations of those
> constitutions in legal terms; they translate politics into policies.
> 
> Such politics are absent from the Creative Commons. As Mako Hill points
> out, the "non-commercial" CC licenses prohibit use for any purpose, the
> "no-derivatives" licenses prohibit modification, and the CC "Sampling
> License" and "Developing Nations License" even disallow verbatim
> copying. As a result, none of the user rights granted by free and open
> source software are ensured by the mere fact that a work has been released
> under a Creative Commons license. To say that something is available
> under a CC license is meaningless in practice. Not only does the CC symbol
> look like a fashion logo, it also isn't more than one. Richard Stallman,
> founder of the GNU project and author of the Free Software Definition,
> finds that "all these licenses have in common is a label, but people
> regularly mistake that common label for something substantial."^3 Yet
> some if only vague programmatic substance is expressed in CC's motto
> "Some rights reserved." Beyond being, quote Mako Hill, a "relatively
> hollow call," this slogan factually reverses the Free Software and Open
> Source philosophy of reserving rights to users, not copyright owners,
> in order to allow the former to become producers themselves.
> 
> While Mako Hill embraces at least a few of the CC licenses, such as the
> ShareAlike License under which his own essay is available, Stallman finds
> it a "self-delusion to try to endorse just some of the Creative Commons
> licenses, because people lump them together; they will misconstrue any
> endorsement of some as a blanket endorsement of all."^4 According to an
> entry on his weblog, Stallman had "asked the leaders of Creative Commons
> privately to change their policies, but they declined, so we had to part
> ways."^5 The Debian project even considers all CC licenses non-free and
> recommended, in 2004, that "authors who wish to create works compatible
> with the Debian Free Software Guidelines should not use any of the
> licenses in the Creative Commons license suite,"^6 mostly because their
> attribution clause limits modifications, because of restrictions on the
> Creative Commons trademark and ambiguously worded anti-"Digital Rights
> Management" (DRM) provisions that could be interpreted as prohibiting
> distribution over any encrypted channel, including for example PGP-encoded
> E-Mail and anonymizing proxy servers.
> 
> Whatever stance one may adopt, the name "Creative Commons" is misleading
> because it doesn't create a commons at all. A picture released, for
> example, under the Attribution-ShareAlike license cannot legally be
> integrated into a video released under the Attribution-NonCommercial
> license, audio published under the Sampling License can't be used on its
> soundtrack. Such incompatible license terms put what is supposed to be
> "free content" or "free information" back to square one, that is, the
> default restrictions of copyright - hardly that what Lawrence Lessig,
> founder of the Creative Commons, could have meant with "free culture"
> and "read-write culture" as opposed to "read-only culture." In his blog
> entry "Creative Commons Is Broken," Alex Bosworth, program manager at
> the open source company SourceLabs, points out that "of eight million
> photos" posted under a CC license on Flickr.com "less than a fifth
> allow free remixing of content under terms similar to an open source
> license. More than a third don't allow any modifications at all."^7 The
> "principle problem with Creative Commons," he writes, "is that most of
> the creative commons content is not actually reuseable at all."
> 
> While these problems may at least hypothetically be solved through
> improvements of the CC license texts - with the license compatibility
> clauses in the draft of the GNU GPL version 3 as a possible model -,
> there are farther-reaching issues on the level of politics as opposed to
> merely policies. CC's self-definition that "our licenses help you keep
> your copyright while inviting certain uses of your work - a `some rights
> reserved' copyright" translate into what the software developer and Neoist
> Dmytri Kleiner phrases as follows: "the Creative Commons, is to help `you'
> (the `Producer') to keep control of `your' work." Kleiner concludes that
> "the right of the `consumer' is not mentioned, neither is the division of
> `producer' and `consumer' disputed. The Creative `Commons' is thus really
> an Anti-Commons, serving to legitimise, rather than deny, Producer-control
> and serving to enforce, rather than do away with, the distinction between
> producer and consumer."^8 Citing Lessig's examples of DJ Dangermouse's
> "Grey Album" and Javier Prato's "Jesus Christ: The Musical" - "projects
> torpedoed by the legal owners of the music used in the production of
> the works" - Kleiner sharply observes that "the legal representatives
> of the Beatles and Gloria Gaynor could just as easily have used Creative
> Commons licences to enforce their control over the use of their work."
> 
> The distinction between "consumers" and "producers" couldn't be more
> bluntly stated than on CC's home page. It displays, on its very top,
> two large clickable buttons, one labelled "FIND Music, photos and more,"
> the other "PUBLISH Your Stuff, safely and legally," the former with a
> down arrow, the latter with an up arrow in its logo.^9 The small letters
> are no less remarkable than the capitals.  Upon first glance, the adverbs
> "safely and legally" sound odd and like material for a future cultural
> history museum of post-Napster and post-9/11 paranoia. But above all,
> they name and perpetuate the fundamental misunderstanding artists seem
> to have of the Creative Commons: Free licenses were not meant to be, and
> aren't, a liability insurance against getting sued for use of third-party
> copyrighted or trademarked material. Whoever expects to gain this from
> putting work under a Creative Commons license, is completely mistaken.
> 
> Artists are desperately looking for a solution to a problem that
> ultimately resulted from their own efforts of redefining art. When
> art was granted, in Western cultures at least, an autonomous status,
> artists were - to a moderate degree - waived from a number of legal
> norms. Kurt Schwitters was not sued for collaging the logo of German
> Commerzbank into his "Merz" painting which in turn yielded his "Merz"
> art. Neither did Andy Warhol receive injunctions for using Coca Cola's
> and Campbell's trademarks. As long as these symbols remained inside the
> art world, they did not raise corporate eyebrows. Experimental artists
> embraced the Internet just because it did away with the separation of
> white cubes - in which logos and trademarks were safe from being mixed
> up with the original ones - and the outside world. Mainly thanks to the
> Internet, artistic simulations of corporate entities were believable for
> the first time. The Yes Men could pose as the World Trade Organisation
> and get invited to World Economic Forum as WTO representatives,
> 0100101110101101.org could tactically disguise themselves as the Nike
> company. Older artistic simulations like Res Ingold's "Ingold Airlines"
> were not only transparent and clumsy in comparison, but also on the safe
> grounds of an art system with little or no interference of corporate
> lawyers. But ever since the World Wide Web, file sharing and cheap
> or free authoring software tore down walls between art and non-art
> practice, producers and consumers, former consumers were held liable as
> producers, and artistic production became subject to non-art world norms,
> as obvious in the FBI investigations of Steve Kurtz and ubermorgen.com
> for bioterrorism, respectively tampering the U.S. presidential elections.
> 
> Previous artistic critiques of corporate and intellectual ownership
> were much less efficacious even where they were programmatically more
> radical. Between 1988 and 1989, a series of countercultural "Festivals
> of Plagiarism," organized by Stewart Home, Graham Harwood and others,
> struggled with wide gaps between radical anti-copyright rhetoric and
> an artistic practice limited mostly to photocopied mail art work. John
> Berndt, a participant of the London Festival of Plagiarism in London,
> left with the impression that "a repetitive critique of 'ownership`
> and 'originality` in culture was juxtaposed with collective events,
> in which a majority of participants [...] simply wanted to have their
> 'aesthetic` and vaguely political artwork exposed,"^10 making fellow
> Neoist tENTATIVELY, a cONVENIENCE conclude that "Festivals of Recycling
> might have been more accurate descriptions" for the events: "By virtue
> of calling the act of reusing and changing previously existing material
> (not even always with the intention of critiqueing said material)
> 'Plagiarism` the appearance of being 'radical` could be given to people
> whose work was otherwise straight out of art school teachings."^11
> 
> Today, similar gaps and misunderstandings exist between copyleft activists
> and artists who just seek to legitimize their use of third-party
> material. When Lawrence Lessig characterizes the Creative Commons as
> "'fair use`-plus: a promise that any freedoms given are always in
> addition to the freedoms guaranteed by the law,"^12 this is technically
> correct, but nevertheless misunderstandable, especially for artists
> who aren't legal experts. Putting a work under a CC license - or even
> a non-ambiguously free GNU or BSD license - means to grant rather than
> to gain uses in addition to standard fair use. The Creative Commons do
> not solve the problem of how not to get sued by Coca Cola or Campbell's
> at all. Non-free copyrighted material cannot be freely incorporated into
> one's work no matter what license one choses. Even worse, the opposite is
> true: copyright owners are most likely to categorically refuse clearance
> for anything that will be put into free circulation because the license of
> the work incorporating their's would effectively relicense the former. If,
> for example, the Corbis corporation would permit the photograph of
> Einstein sticking out his tongue - for which it holds the rights - to
> be reproduced in a freely licensed book, it would free the picture for
> anyone else's use as well. Since this can hardly be expected from the
> Bill Gates-owned company, free licensing often restrains rather than
> expands one's possibilities of using third-party material.
> 
> This example reveals a crucial difference between software development and
> artistic practice: Programming can sustain itself on its own, self-built
> library of reusable work, but art hardly so. The GNU copyleft works on
> the premise that modifications are also contributions. If, for example,
> a company like IBM choses to modify the Linux kernel to run on its own
> servers, the GNU license forces it to give back the added code to the
> development community. And the more code is available as free software,
> the higher the incentive for others to simply build on existing free code
> libraries and give back changes rather than building a new program from
> scratch. This explains why even for computer companies, free software
> development can make more economic sense than the close source commercial
> model.  In addition, free software development profits from a difference
> between source code and perceivable appearance that doesn't have an exact
> equivalent in most artistic work: Programs can be written that look and
> behave similar or identical to proprietary counterparts as long as they
> don't use proprietary code and do not infringe on patents. This way,
> AT&T's Unix could be rewritten as BSD and GNU/Linux, and Microsoft
> Office could be cloned as OpenOffice. Even patents which could spoil
> such appropriations aren't as internationally universal and not remotely
> as long-lasting as copyright. In other words, free software development
> could be an "appropriation art" without copyright infringement.
> 
> The same isn't possible for most artists, however, and it makes little
> sense for them to restrict their uses to material whose copyright
> has either expired or that has been released under sufficiently free
> licenses. The Coca Cola logo can't be cloned as a copylefted "FreeCola"
> logo, and it would be pointless for the YesMen to pose as an "OpenWTO"
> or for 0100101110101101.org to have run as "GNUke" instead of Nike. If
> even harmless collaging, sampling and quoting becomes risky because of
> media industrial Internet copyright paranoia and whole business models
> based on injunctions and lawsuits, it is a political matter of fair use,
> not of free licenses. In the worst case, free licenses, all the more
> fluffy and pseudo-free ones like the Creative Commons, could be used
> to legitimize new restrictions of fair use legislation, or even its
> abolition altogether, with the alibi that the so-called "ecosystem,"
> or ghetto, of more or less freely licensed work provides enough fair
> use for those who bother to care.^13
> 
> It is not hard to bash the Creative Commons for being an organization run
> with little understanding of the arts, and not even a good understanding
> of free software philosophy. On the other hand, artists themselves have
> failed to voice themselves what they want. The exceptions are few and
> rather marginal, such as the anti-copyright philosophies and politics of
> Lautréamont, Woody Guthrie (who, according to Dmytri Kleiner, released
> his songbook with the license that "anybody caught singin' it without
> our permission, will be mighty good friends of ours, cause we don't
> give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it"),
> Lettrists, Situationists, Neoists, Plunderphonics musicians and some
> Internet artists including the French artlibre.org collective whose
> "Free Art License" predates the Creative Commons by two years.^14
> 
> A team of lawyers whose work consists of creating, as Bosworth puts it,
> "low cost legal templates," the Creative Commons organization has simply
> listened to all kinds of artists and activists, trying to do justice to
> diverse and sometimes contradictory needs and expectations, with licenses
> "designed to give artists choice" (Mako Hill) rather than prioritizing
> free use and reuse of information. In contrast, Free Software and Open
> Source are, like any human and civil rights effort, universalist at their
> core, with principles that may be neither negotiated, nor culturally
> relativized.
> 
> If someone is to blame for the fact that artists, political activists
> and academics from the humanities have largely failed to recognize those
> essentials, then it is Eric S. Raymond, founder of the "Open Source
> Initative" (http://www.opensource.org), the group that coined the term
> "Open Source" in 1998.  The main advantage of the term "Open Source" over
> "Free Software" is that it doesn't merely refer to computer programs,
> but evokes broader cultural connotations.^15 For most people with
> artistic backgrounds, GNU's "Free Software" sounded too confusingly
> similar to (close-source) "freeware" and "shareware."  "Open Source"
> sparked an all the richer imagination as Raymond didn't simply pitch it
> as an alternative to proprietary "intellectual property" regimes, but
> as a "Bazaar" model of open, networked collaboration. Yet this is not at
> all what the Open Source Initiative's "Open Source Definition" says or
> is about. Derived from Debian's "Free Software Guidelines," it simply
> lists criteria licenses have to match in order to be considered free,
> respectively open source. The fact that a work is available under such
> a license might enable collaborative work on it, but it doesn't have to
> by definition. Much free software - the GNU utilities and the free BSDs
> for example - is developed by rather closed groups and committees of
> programmers in what Raymond calls a "Cathedral" methodology. Conversely,
> proprietary software companies such as Microsoft may develop their
> code in distributed "Bazaar" style. Nevertheless, the homepage of
> http://www.opensource.org states that the "basic idea behind open source"
> is about how "software evolves," "at a speed that, if one is used to the
> slow pace of conventional software development, seems astonishing," thus
> producing "better software than the traditional closed model." Regardless
> which position one takes in the philosophical and ideological dispute
> between "Free Software" and "Open Source," the self-characterization
> of Open Source as a development model mixes up cause and effect, being
> inconsistent with what the Open Source Definition qualifies as Open
> Source, i.e. software that meets its standards of free use.
> 
> Given how "Open Source" has been propagated as a model of networked
> collaboration instead of user rights or free infrastructures, the
> gap between the lip-service paid to it in the arts and humanities
> and the factual use of free software and copylefts comes to little
> surprise. "Cultural" free software conferences whose organizers and
> speakers run Windows or the Mac OS on their laptops continue to be
> the norm. With few exceptions, art education hardly ever involves free
> software, but is tied to proprietary software tool chains. Yet - often
> vague and half-informed - "Open Source" references abound in media
> studies and electronic arts writing.
> 
> The problem is not so much that people do not use free operating systems,
> but that software-political correctness anxiety prevents a more honest
> critical discourse.  A debate on "why free software doesn't work
> for us" would be more productive for its development than the current
> hypocrisy. Recent discussions on why, for example, free software culture
> involves disproportionally few women (even in comparison to proprietary
> software development) at least begin to tackle some of the issues.
> 
> Productive critique, after all, is needed. Eight years after the coinage
> of "Open Source", Raymond's Hegelian claims of superior development
> methodologies sound increasingly hollow. Free software hasn't displaced
> proprietary software at all and seems, despite its success on servers
> and in embedded systems, to be unlikely to take over mainstream personal
> computers any time soon. Free software, it seems, has its strength in
> building software infrastructure: kernels, file systems, network stacks,
> compilers, scripting languages, libraries, web, file and mail servers,
> database engines. It lags behind proprietary offerings, for example,
> in conventional desktop publishing and video editing, and, as a rule of
> thumb, in anything that isn't highly modularized or used a lot by its
> own developer community. The closer the software is to the daily needs
> and work methods of programmers and system administrators, the higher
> typically its quality.
> 
> Similar rules seem to apply to free information, respectively "Open
> Content" development. The model works best for infrastructural, general,
> non-individualistic information resources, with Wikipedia and FreeDB (and
> lately MusicBrainz) as prime examples. Similarly, the cultural logic of
> sounds and images circulating under CC licenses is largely that of stock
> music, stock photography and clip art, regardless the fact that current
> CC licenses mostly fail to permit their "mashups," boiling down to little
> more than "Web 2.0" lifestyle logos.  Beyond infrastructural information,
> the value of free licensing is somewhat doubtful. Experimental, radical
> art and activism that does not play nice with third-party copyrights and
> trademarks can't be legally released and used under whatever license
> anyway. Its work should rather - and explicitly - be released into
> the public domain with, quote jodi, "all wrongs reversed" and, quote
> Kleiner, "all rights detourned under the terms of the Woody Guthrie
> General License Agreement." For professional artists, this simply means
> to acknowledge the reality of contemporary art economics: that artists,
> with the exception of a handful of stars, no longer live from producing
> material goods (for which copyright granted lifetime monopolies, or at
> least the illusion of continuous revenue streams), but like 17th century
> project entrepreneurs from commissioned projects whose material products
> have little or no market value by themselves.
> 
> Copyright, having turned from a regulation into a subsidy of publishing
> industries, is the 21st century equivalent of drug legislation. Everyone
> knows that it is obsolete, dysfunctional, and depriving people of
> their rights; absurd wars are foughts in its name. The simple fix is to
> abolish it.
> 
> 
> Florian Cramer, October 2006
> 
> _____________________________________________________________________________
> 
> 
> Footnotes:
> 
> ^1 Benjamin Mako Hill, Towards a Standard of Freedom: Creative Commons
> and the Free Software Movement, http://www.advogato.org/article/851.html
> 
> ^2 http://www.gnu.org/philosophy/free-sw.html,
> http://www.debian.org/social_contract,
> http://www.opensource.org/docs/definition.php
> 
> ^3 http://www.linuxp2p.com/forums/viewtopic.php?p=10771
> 
> ^4 http://www.linuxp2p.com/forums/viewtopic.php?p=10771
> 
> ^5 http://www.fsf.org/blogs/rms/entry-20050920.html
> 
> ^6 http://lists.debian.org/debian-legal/2004/07/msg01193.html
> 
> ^7
> http://www.sourcelabs.com/blogs/ajb/2006/02/creative_commons_is_broken.html
> 
> ^8 Dmytri Kleiner, The Creative Anti-Commons and the Poverty of Networks,
> http://info.interactivist.net/article.pl?sid=06/09/16/2053224
> 
> ^9 http://creativecommons.org/images/find.gif,
> http://creativecommons.org/license
> 
> ^10 John Berndt, Proletarian Posturing and the Strike that Never Ends,
> SMILE magazine, Baltimore, 1988
> 
> ^11 tENTATIVELY, a cONVENIENCE, History Begins where Life Ends,
> self-published pamphlet, Baltimore 1993
> 
> ^12 http://creativecommons.org/weblog/entry/5681
> 
> ^13 This scenario isn't too far-fetched considering Lessig's
> recent advocacy of the non-open file format Adobe/Macromedia's
> Flash which he calls a "crucial tool of basic digital education
> in a free culture" (quotation translated from the German
> article http://www.heise.de/newsticker/meldung/78278/, see also
> http://lwn.net/Articles/199877/) Since proprietary file formats cannot
> be universally accessed and lock information into technology whose
> availability is at the mercy of a single vendor, they restrain fair use.
> 
> ^14 http://artlibre.org/licence/lal/en/
> 
> ^15 It is not coincidental, for example, that the term "Open Content"
> and the web site http://www.opencontent.org was launched in 1998 only few
> months after the first propagation of "Open Source," until its founder
> David Wiley sacked the initiative in 2004 in order to - surprisingly or
> not - become a director of Creative Commons.
> 
> -- 
> http://cramer.plaintext.cc:70
> gopher://cramer.plaintext.cc
> 
>