Post Books

Call for mini-essays on “the cost of freedom” in free knowledge movements in honor of Bassel Khartabil

Thursday, October 29th, 2015

Dear friends,

I’m helping organize a book titled “The Cost of Freedom” in honor of Bassel Khartabil, a contributor to numerous free/open knowledge projects worldwide and in Syria, where he’s been a political prisoner since 2012, missing and in grave danger since October 3. You can read about Bassel at and lots more at and

Much of the book is going to be created at a face-to-face Book Sprint in Marseille Nov 2-6; some info about that and the theme/title generally at

We’re also asking people like yourself who have been fighting in the trenches of various free knowledge movements (culture, software, science, etc.) to contribute brief essays for inclusion in the book. One form an essay might take is a paragraph on each of:

* An issue you’ve faced that was challenging to you in your free knowledge work, through the lens on “cost”; perhaps a career or time opportunity cost, or the cost of dealing with unwelcoming or worse participants, or the cost of “peeling off layer upon layer the proprietary way of life” as put in
* How you addressed this challenge, or perhaps have yet to do so completely
* Advice to someone starting out in free knowledge; perhaps along the lines of had you understood the costs, what would you have done differently

But feel free to be maximally creative within the theme. We don’t have a minimum or a maximum required length for contributed essays, but especially do not be shy about concision or form. If all we get is haiku that might be a problem, or there might be a message in that of some sort.

Other details: The book will be PUBLISHED on Nov 6. We need your contribution no later than the end of Nov 3 UTCThursday, Nov 5 at 11:00 UTC (Paris: noon; New York: 6AM; Tokyo: 9PM) to be included. The book will be released under CC0; giving up the “right” to sue anyone for any use whatsoever of your contribution is a cost of entry…or one of those proprietary layers to be peeled back. Send contributions to

Feel free to share this with other people who you know have something to say on this topic. We’re especially looking for voices underrepresented in free knowledge movements.


p.s. Please spread the word about #freebassel even if you can’t contribute to the book!

Lessig is the most patriotic candidate

Monday, October 12th, 2015

Almost always for me ‘patriot’ is a term of derision, but here I mean something specific: putting one’s preferred issues and interests to the side to focus on fixing the relevant institutions, in this case of the state. To make the state stronger (as in less degenerate, not necessarily huger). To make collective action work better. To steer the system away from N-party competitive distribution of public spoils by fixing the system rather than blaming particular groups of outsiders or insiders (i.e., what usually passes as ‘patriotic’).

By that specific meaning, Lawrence Lessig is by far the most patriotic candidate for U.S. temporary dictator. I hope he gets into more polls (and prediction markets) and the debates. In Republic, Lost (2011; pdf; my notes on the book below) Lessig evaluates the chances of a presidential campaign like the one he is running: “Let’s be wildly optimistic: 2 percent.” That sounds fair, but the campaign still makes sense, for building name recognition for a future campaign or for injecting non-atavistic patriotism into the debate (so let him).

The campaign worked on me in the sense that it motivated me to read Republic, Lost (which had been in my virtual ‘fullness of time’ pile). I hadn’t followed Lessig’s anti-corruption efforts closely because I was burned out from working for him at Creative Commons and based on headlines, they looked like a turbocharged version: grand and good basic ideas (roughly fixing knowledge regulation and fixing democracy, respectively), politician-like (now actual politician) total campaigning (both for money and to convince the public; in the short term the free culture movement is surely poorer in both respects relative to a world in which Lessig did not shift focus), and constant startup-like pivoting and gimmicks that seemed to me distractions from the grand and good ideas (but no doubt to him are essential innovations). There are many reasons Creative Commons was not a venue ripe for experimentation, and it seems to (I’m barely involved anymore) have mostly settled into doing something close to commons coordination work I believe it is most suited to, including work on license interoperability and supporting open policy. But in hindsight a venue or series of them (cf. Change Congress, Fix Congress First, Mayday.US, NHRebellion, RootStrikers…) built for experimentation might have made for a more contribution to the [semi]free culture world than did a conservatism-inducing (appropriately) license steward (of which there were already plenty). All of which is to say that I’m looking charitably upon Lessig’s many political experiments, including the various novel aspects of his current campaign, though I can understand how they (the means, not the ends of fixing democracy) could be interpreted as gimmicks.

One of my takeaways from Republic, Lost is that the referendum candidacy (Lessig intends to resign after passing one bill, making his candidacy a referendum for that bill) is sort of an anti-gimmick, a credible commitment mechanism, without which any candidate’s calls for changing the system ought be interpreted as hot air. In the book Lessig expresses deep disappointment with Obama, who ran promising fundamental change, which he then failed to deliver or even really attempt, with the consequence of corrupting the non-system-changing reforms he has pushed through (e.g., health care reform contains massive giveaways to drug and insurance industries).

Experimentation with novel commitment mechanisms and anti-gimmicks is great, so I heartily applaud Lessig’s referendum candidacy. But so far it seems to have backfired: the anti-gimmick is interpreted as a gimmick and (not sure if following has been mentioned in press, but is usual response from friends I’ve mentioned the campaign to) the commitment is not taken as credible: it’s still just a politician’s (worthless) promise, power would go to his head, exigencies would intervene, or even if none of this is true, the bill would never pass. On the last bit, Lessig argues that if he won as a referendum candidate, members of Congress would understand the electorate was making an extraordinary demand and pass the bill — they want to be re-elected. Sounds reasonable to me, given the extraordinary circumstance of Lessig being elected without deviation from his referendum platform. The extraordinary circumstance that election would be also seems to me to mitigate the other objections, though less so.

Speaking of power head trips, what about the problem of executive power (thus my preference for calling the U.S. presidency a temporary dictatorship)? Abuse and non-reform thereof has been my biggest disappointment with the Obama administration. I can only recall an indirect mention in Republic, Lost: Congressional deliberation is now rare in part due to members’ need to constantly fundraise, thus, according to a quoted former member, Congress is “failing to live up to its historic role of conducting oversight of the Executive Branch” and “[N]o one today could make a coherent argument that the Congress is the co-equal branch of government the Founders intended it to be.” It does seem totally reasonable that if Congress is non-functional and dependent on concentrated money, the executive branch would also be able to cultivate Congress’ dependency (Lessig does a good job of explaining his use of this term early in the book) and thus thwart Congress as an effective regulator of executive power. I wish Republic, Lost had more on the relationship of Congress and the executive, and related, on Congress and the military/foreign policy/state security complex. To what extent does concentrated money from military contractors, “legislative subsidy” (motivated analysis; a less distracted Congress might make such less needed to the extent it is benign and easier to defend against to the extent it is not) from contractors and the military itself make Congress less able to regulate and indeed eager to go along with disastrous and criminal militarism?

What if politicians could and regularly did make credible commitments to upholding their promises? If the mechanism were not novel and the promises reasonable, perception of gimmickry would largely go away. So would the need for the novelty of a referendum candidacy with a promise of resignation: the referendum would be built in, resignation would be required when a candidate does not uphold their promises, not when they do. Could a stronger commitment be made by a candidate now, without any changes to the law? Would a contract with an intermediary, perhaps a non-profit existing only to enforce candidate promises made to it, be upheld? If politicians upholding their promises is a good thing, shouldn’t a commitment mechanism be built into the law?

Assume for a moment that it would be good for government institutions to make candidate promises enforceable (optionally; a candidate could still make all the hot air promises they wished). We can’t have that reform until the system “rigged” (a term Lessig uses in his campaign, but not appearing in the book) by the need to fundraise from concentrated interests is fixed, because we can’t have any reform until the system is fixed, at least not any reform that isn’t corrupted by having to survive the rigged system. Is it the case that concentrated money in elections is the essential rigging that must be removed before good progress on any other issue can be obtained?

Lessig does make a very good case that dependency of politicians on concentrated money interests is a problem. Three points (among many) stood out to me. First, at the least politicians must spend a huge portion of their time fundraising, making them distracted, relatively ignorant (having to be fundraising rather than studying or discussing issues), and I’d imagine relatively stupid (selection for fundraising tolerance and ability, driving out other qualities). Second, we often go through great lengths to ensure judges are removed from cases in which they have even an appearance of conflict — shouldn’t we want to isolate law makers from even the appearance of corruption just as much, if not more? (Does this not suggest a different reform: bar legislators from any vote in which any impacted party has donated above some very small amount to the legislator’s campaigns?) Third, academic literature on the influence of money in legislative outcomes tends to find little. Lessig argues that this literature is looking for keys under the lamppost because that’s where the light is — it’s easy to look at roll call votes, but almost all of the action is in determining what legislation makes it to a vote.

Intuitively the effect of dependence on concentrated money on agenda setting and thus outcomes ought be large. Is there any literature attempting to characterize how large? I didn’t notice any pointers to such in Rebpublic, Lost, but may have missed them. A comment made late in a forum on Subsidizing Democracy: Can Public Financing Change Politics? indicates that the empirical work hasn’t been done yet, at least not through the lens of the impact on outcomes of various forms of public financing of U.S. state legislature campaigns. But public financing does seem to have big impacts on legislator time dedicated to fundraising, time spent talking to potential voters, and who runs and is elected.

Vying with the brief contrast of demands for independence of judges and legislators for the most valuable portion of Republic, Lost is a brief mention with supporting footnote of U.S. state legislative campaign public funding reforms, particularly in Arizona, Connecticut, and Maine:

Over the past fifteen years, three states have experimented with reforms that come very close to this idea. Arizona, Maine, and Connecticut have all adopted reforms for their own state government that permits members of the legislature (and of some statewide offices) to fund their campaigns through small-dollar contributions only. Though the details of these programs are different, the basic structure of all three is the same: candidates qualify by raising a large number of small contributions; once qualified, the candidates receive funding from the state to run their campaigns.

References about these, include one by Michael G. Miller, author of Subsidizing Democracy (2014). I haven’t read this book, but I did find a recording of a forum on the book held at New America Foundation, which I recommend — the other commentators provide valuable context and critique.

Spencer Overton’s comments, starting at about 30 minutes, seem to give an overview of leading thinking on campaign finance, in particular three points. First money in politics is not the problem, dependency on concentrated money is, therefore subsidizing small contributions in exchange for opting to accept limits on large contributions is a solution (note this reform steers clear of reasonable free speech objections to simply banning concentrated money). Second, mitigating corruption is a good outcome of such a solution, but increasing citizen engagement in politics is another good outcome. I’m fairly certain Lessig would be in strong agreement with these first two points; he mentions Overton’s work on “participation interest” in Republic, Lost. Third, states (and cities, e.g., NYC) are learning from and improving their reforms: the impacts on candidate and legislator behavior studied by Miller (primarily in Arizona, if I understand correctly) are based on reforms which are being improved. Overton in particular mentioned the value of matching small donations on an ongoing basis rather than only using small donations to qualify for a lump subsidy (note this would make the reforms much more similar to Lessig’s proposal).

The mention of U.S. state reforms is in the “strategies” section of Republic, Lost, in a description of the first strategy: simply getting Congress to pass a reform similar to those already passed in a few states. Lessig dismisses this strategy because lobbyists are a concentrated interest standing in its way. I’m not convinced by the dismissal for three reasons. First, aren’t state level reforms an existence proof? Lobbyists exist at the state level and are a potential interest group. Second, just how concentrated is the interest of lobbyists qua lobbyists? They are paid to represent various concentrated interests, but how well do they support the Association of Government Relations Professionals, renamed in 2013 from the American League of Lobbyists? Do lobbyists as a class suffer from all the usual collective action problems? Admittedly, to the extent they do form a coherent interest group, they do know just how to be effective. Third, can’t success at the state and local level drive cultural change (especially if reforms obtain demonstrably improved outcomes, but even if not they change the culture of the farm team for Congress and eventually Congress, by removing selection pressure for tolerance of and skill at fundraising), making passing a bill in Congress even against lobbying interests more feasible? This path does not have the urgency of a national campaign, but by Lessig’s own estimates such urgency is nearly hopeless, e.g., as mentioned above “wildly optimistic: 2 percent” for a presidential campaign.

Regardless of whether he favored a long-term state and local innovation driven strategy, I wish Lessig had written more about state and local reforms in order to make the case that concentrated money is a problem more concrete and less intuitive and that reforms similar to ones he proposes make the sort of essential difference that he claims (changed state outcomes could help demonstrate both things). Perhaps there was not enough experience with state and local reforms that de-concentrated and added money to campaigns to say much about them in Repbulic, Lost (2011), but is that still the case in the current campaign? I also would have and would appreciate some analysis of the impact of various campaign financing regimes around the world on the campaigns, composition, behavior, and outcomes of legislatures. The sole contemporary non-U.S. legislature mentioned in Republic, Lost is the UK House of Commons, which often deliberates as a body, unlike the U.S. Congress. Is this an outcome of different campaign financing? Lessig doesn’t say. Yes cross-country comparisons are fraught but surely some would be helpful in characterizing the size of the problem of concentrated money and the potential impact of reform.

While I’m on the “strategies” section of Republic, Lost, a few notes on the other three proposed. Recall the first (discussed above) is passing a bill in the U.S. Congress, dubbed “The Conventional Game”. The second is “An Unconventional (Primary) Game” strikes me as classic Lessig — it involves getting celebrities on board (each celebrity would contest primaries for U.S. Congress in multiple districts), and I don’t quite get it. He gives it a “wildly optimistic: 5 percent” chance of working. With that caveat, and a reminder to myself about taking these proposals charitably, it is a creative proposal at the least. I suppose it could be thought of as a way to turn a legislative primary election season into a referendum on a single issue. Crucially for the single issue of campaign finance reform, without the cooperation of incumbents fit for the current system, or as Lessig writes, it would be a strategy of “peaceful terrorism” on such incumbents.

The third strategy is “An Unconventional Presidential Game”, which the current Lessig campaign seems to be following closely.

The fourth strategy is “The Convention Game”:

A platform for pushing states to call for a federal convention would begin by launching as many shadow conventions as is possible. In schools, in universities—wherever such deliberation among citizens could occur. The results of those shadow conventions would be collected, and posted, and made available for critique. And as they demonstrated their own sensibility, they would support the push for states to call upon Congress to remove the shadow from these conventions. Congress would then constitute a federal convention. That convention—if my bet proves correct—would be populated by a random selection of citizens drawn from the voter rolls. That convention would then meet, deliberate, and propose new amendments to the Constitution. Congress would refer those amendments out to the states for their ratification.

In the book, this strategy seems to be where Lessig’s heart is. He gives it “with enough entrepreneurial state representatives” a “10 percent at a minimum” chance of success. A constitutional convention brings up all kinds of arguments; I recommend reading the chapter in Republic, Lost. I include it in this post for completeness, for its reliance on entrepreneurial state representatives (the long-term “conventional game” also does, see above), and most of all for its inclusion of — sortition (random selection)! That is my preferred reform for choosing legislators (and indirectly, executives, including national temporary dictators), removing not only dependence on concentrated money, but dependence on campaigning, which surely also has a strong selection effect, for tolerance of and skill at campaigning, against other qualities. But much like range voting, land value taxation, and prediction markets (and others; let’s see how the new thing, quadratic voting, fares), sortition’s real world use is about the inverse of its theoretical beauty (dependencies at odds with apparent objectives or corruption broadly conceived is probably a big part of the story for each, example; note similarity to my question about broad conceptions of commoning). Oh well. Perhaps de-concentrating money in political campaigns is a first step toward more ideal institutions.

But is it the essential first step claimed by Lessig, before which no other reform can go forward uncorrupted?

In Republic, Lost Lessig does a decent job of turning stereotypical left and right objections into arguments that de-concentrating money in political campaigns is the essential first step. The left objection is that wealth inequality must be addressed first; without doing so the wealthy will always find ways to rig the system in their favor. Turn: you can’t expect to achieve wealth redistribution when the system is rigged by concentrated money from the wealthy. The right objection is that the essential problem is that government is doing too much; reduce the size and scope of government first, then its remaining essential functions (if any) can run like Swiss clockwork. Turn: you can’t expect to reduce the size and scope of government when the system is rigged by concentrated money protecting every grotesque program. I don’t expect these turns will convince many of those strongly convinced that the essential problem is wealth inequality or big government. In small part because it’s not entirely clear, as for lobbyists, that “the wealthy” or “big government” constitute concentrated interests able to use the rigged system to protect themselves from what a dream crisis or candidate of the left or right would do to them. Rather, there are a bunch of different concentrated interests that probably tend to increase upward wealth redistribution and the size of government. Systematic reform would mitigate these tendencies but from the left or right perspective is not ‘striking at the root’ and does not have the feel of urgency of a dream crisis or candidate. If a referendum candidate is an effective vehicle, why not one who promises to hack at the rich or at government, then resign? But for the not entirely committed, perhaps de-concentrating money in political campaigns can be made to seem a good first step, possibly an essential non-revolutionary (that is, not a catastrophic invitation to trolls) strategy.

Another objection to de-concentration of money in political campaigns as the essential first step is lots that ought be construed as reform is not dependent on elected legislatures. Much does not go directly through government. Everything from organizations to culture to interpersonal relationships all have scope for independent reform, which happens all the time. As do other organs of government such as courts and administration. These objections could be turned to apologia for the primacy of de-concentration of money in political campaigns. They explain why one can perceive good reform happening (e.g., marriage equality) when Lessig tells us no good reform is possible until campaign finance is reformed. These independent sources of reform mask just what a poor job the U.S. Congress does. Clearly lots of important reform is dependent on action by the U.S. Congress, and any such reform is wholly blocked or corrupted by having to survive a U.S. Congress dependent on concentrated money, which meanwhile also passes all kinds of anti-reform.

There are numerous reforms which would reduce corruption, capture, and inappropriate dependency which could be taken as objections to campaign finance reform as the essential first reform, or buttress the argument for it, depending on their dependence on a U.S. Congress dependent on fundraising from concentrated money. The Scourge of Upward Redistribution, a recent article by Steven Teles, surveys a number of such reforms, which tend to give regulatory decision makers more resources and push regulatory decisions into more accessible venues, making decisions less dependent on and controlled by concentrated interests. The control is not just about venue, but imagination: broader participation in regulatory decision making could reduce “cognitive capture” or “cultural capture”. (Needless to say all of these reforms have great intuitive appeal, but like campaign finance reforms, cry out for evidence from where similar are now implemented.) Teles does not mention campaign finance reform at all. I wondered whether this was a critique by omission, and found A New Agenda for Political Reform by Teles and Lee Drutman. They consider attempts to get money out of politics and increase participation to have largely failed and to have poor prospects, and argue the essential reform is to give the U.S. Congress more resources. Conclusion:

Convincing Congress, especially this Congress, to invest in its own staff capacity clearly won’t be easy. But neither is it inconceivable. Even small-government conservatives are feeling pressure to do something about the influence of corporate lobbying. Improving congressional capacity is a reform action they can take that would increase their own power, wouldn’t force them to agree with liberal get-the-money-out-of-politics types, and wouldn’t directly cross the corporate lobbying community. For those concerned about the malign influence of corporate power on our democracy, increasing government’s in-house nonpartisan expertise is almost certainly a more promising path forward than doubling down on more traditional reform strategies.

In Republic, Lost Lessig mentions many of the reforms that Teles writes about, and clearly considers dependence on fundraising concentrated money to be the essential blocker and first reform. I don’t know which is “right”. They largely see the same problems of a government controlled by concentrated interests. To the charge of failure and poor prospects above, I imagine that people like Lessig and Overton would respond that they have moved beyond getting money out of politics to getting more diverse money into politics, and beyond getting people to vote and somehow pay attention to getting them to feel more committed through making small and well matched donations. Presumably both sets of reforms are complementary, except to the extent they compete for reform attention.

This brings us to why I don’t like the referendum candidacy, where the referendum aims to fix the “rigged” system, and the referendum candidate resigns as soon as the bill intended to fix the system is passed. Many reforms are needed to fix the system, including those mentioned by Teles, and probably a selection of reforms favored by people who are committed to reducing wealth inequality as well as the power of government in some dimensions. In order to make the first reform resilient, further strengthening of governing and regulating institutions will have to be made, and the context of inequality and arbitrary power changed. Cursory reading of histories of empires in periods of decline show patriotic (in the sense described at the top) reform attempts, occasionally met with a bit of success, but quickly lost. Why would the American empire be any different? There’s no reason to think it might be other than patriotic (in the bad sense) delusion. If a candidate like Lessig were to get a mandate for reform, I’d want them to see it through. Passing one bill to de-concentrate campaign funding might be the necessary first reform, but I can’t see it being sufficient even to ensure the survival of itself, uncorrupted.

The Lessig referendum candidacy’s one bill includes more than a measure to de-concentrate campaign funding though. This measure is bundled with two others (voting rights and election method and districting reforms) under the name Citizen Equality Act. There is perhaps a hint of this in Republic, Lost, where equality of voting is mentioned, but in contrast to the inequality of campaign funding rather than as something needing reform. Now surely there are useful reforms to be made in these areas which would get closer to every voter having equal weight, in terms of access to voting and impact of their votes. But what happened to the one essential reform that must happen before any other than be achieved, uncorrupted? It’s there of course, but why have it share the focus with two good but non-blocking reforms? Here’s what I imagine: concern about inequality bubbles to the top of mainstream discourse, Lessig thinks that he’s got to connect with the equality movement, and comes up with the brand and bundling of “Citizen Equality”. Or maybe campaign finance reform was deemed to be not enough to base on referendum candidacy on, even though it is claimed to be the essential first reform. I have no idea how the Citizen Equality idea came about…but maybe it is a good one. Anti-corruption measures, especially as Lessig defines corruption, seem to largely be consequentialist: we can’t get nice things from a corrupt system (and if one is not careful, anti-corruption measures can be rights violating, even if they achieve good things on net). Voter equality measures on the other hand, seem largely to be about rights: the rights of individual voters, and the ability of minority groups to have a voice through the ballot and protect their rights from the majority. I imagine (surely this is something that has been studied in depth, but I am ignorant) that consequence and rights arguments appeal differently to different voters; a proposal which appeal to both could have better chances of acceptance.

Before closing I have to comment on a few bits pertinent to knowledge policy found in Republic, Lost:

Consider, for example, the case of movies. Imagine a blockbuster Hollywood feature that costs $20 million to make. Once a single copy of this film is in digital form, the Internet guarantees that millions of copies could be accessed in a matter of minutes. Those “extra” copies are the physical manifestation of the positive externality that a film creates. The value or content of that film can be shared easily—insanely easily—given the magic of “the Internets.”

That ease of sharing creates risk of underproduction for such creative work: If the only way that this film can be made is for the company making it to get paid by those who watch it, or distribute it, then without some effective way to make sure that those who make copies pay for those copies, we’re not going to get many of those films made. That’s not to say we won’t get any films made. There are plenty of films that don’t exist for profit. Government propaganda is one example. Safety films that teach employees at slaughterhouses how to use dangerous equipment is another.

But if you’re like me, and want to watch Hollywood films more than government propaganda (and certainly more than safety films), you might well be keen to figure out how we can ensure that more of the former get made, even if we must suffer too much of the latter.

The answer is copyright—or, more precisely, an effective system of copyright. Copyright law gives the creator of a film (and other art forms) the legal right to control who makes copies of it, who can distribute it, who displays it publicly, and so forth. By giving the creator that power, the creator can then set the price he or she wants. If the system is effective, that price is respected—the only people who can get the film are the people who pay for it. The creator can thus get the return she wants in exchange for creating the film. We would be a poorer culture if copyright didn’t give artists and authors a return for their creativity.

I realize this just serves as an example in the context of Republic, Lost, but it’s an appallingly bad one. What risk of underproduction? What does that even mean in the context of entertainment? People love whatever culture they’re immersed in. Individuals have limited attention, massively over-saturated by a huge market. Private tax collection by copyright holders is not the only way to get films made; film making is hugely subsidized (even in the U.S., through location rent seeking), those subsidies could obtain films not subject to private enforcement of speech restrictions. Safety films and government propaganda as the examples of what would be produced without copyright? For government (in particular military/security state) propaganda — watch Hollywood. When not under the influence of offering explanations of how Hollywood blockbusters justify copyright, Lessig and the like celebrate the extraordinary creativity of non-commercial video artists of many forms, uploading countless hours of film superior to safety instruction and propaganda videos. Now presumably there would be many fewer Hollywood-style blockbusters without copyright (incidentally I think a zero was left off the cost figure in the quote, though much of that may be marketing). But a poorer culture? A somewhat different culture, certainly — one in which private censors are not empowered to damage the net, one in which monopoly knowledge rents do not concentrate cultural power, increase wealth inequality, and exclude the poorest from access to knowledge. I don’t expect Lessig to become a copyright abolitionist, and in any case think it is far more useful to advocate for commons-favoring policy than against copyright. But granting the commanding heights of culture wholesale to the copyright industry and narrowing the vision of what the commons can produce is no way to argue for any sort of reform, other than the sort the copyright industry wants.

Elsewhere in the book:

As with any speech regulation, the first question is whether there are other, less restrictive means of achieving the same legislative end. So if Congress could avoid dependence corruption by, say, funding elections publicly, that alternative would weaken any ability to justify speech restrictions to the same end. The objective should always be to achieve the legitimate objectives of the nation without restricting speech.

Apply this to the ends of entertainment production.

This seems like a good juncture to mention a related question: why not free political speech from private censorship? All political speech (by some definition, preferably all speech…but presumably speech paid for by campaign contributions) should be in the public domain. I doubt this would have any significant impact on campaigns or fundraising, but more freedom of speech, especially political speech, seems independently worthy.

A briefer and less bad mention of patents:

Those patents are necessary (so long as drug research is privately financed), but there has long been a debate about whether they get granted too easily, or whether “me-too” drugs get protection unnecessarily.

This seems to be another odd case in which an writer grants more necessity to copyright for entertainment production and less imagination for an alternative than for patents and drug development. Though I’m glad to see the parenthetical above (of course it ought be noted that public money already pays for much of the research, and buys much of the product…), I find the ordering bizarre. The piece I’ve seen similar but even more pronounced recently in is Teles’ The Scourge of Upward Redistribution!

From the “Conventional Game” and “Choosing Strategies” chapters:

These four reasons all point to a common lesson in the history of warfare: You don’t beat the British by lining up in red coats and marching on their lines, as they would on you. You beat them by adopting a strategy they’ve never met, or never played. The forces that would block this bill work well and effectively on Capitol Hill, and inside the Beltway. That is their home. And if we’re going to seize their home, and dismantle it, we need a strategy that they’re sure is going to fail. Yet we need it to win.

Insurgent movements have to fight the war on unconventional turf. If the issue gets decided finally within institutions that depend upon things staying the same, things will stay the same. But if we can move the battle outside the Beltway, to venues where the status quo has no natural advantage, then even small forces can effect big change.

These are exactly why in the space of knowledge policy that commons-based products and commons-favoring policy are so potent, and ought be taken as the primary mechanism of knowledge policy reform. Uncorrupted direct reform of copyright and patents (the standard menu includes things like reducing term lengths and increasing ‘quality’) probably is hopeless without de-concentrating funding of political campaigns (or whatever anti-corruption measure turns out to be the essential first step). Good luck to Lessig. In the meantime, knowledge commons can slowly (far too slowly now, I admit) change the structure of the knowledge economy, create concentrated interests that benefit from commons-favoring policy, and increase policy imagination for what is possible without intellectual property.

I started off claiming that Lessig is the most patriotic candidate for U.S. temporary dictator because he’s the only one putting his preferred issues to the side to fix the institutions of government and make collective action work better. But I have to admit that jingoist patriots (those with some patience anyway) ought also favor Lessig, because those are the qualities that give a nation the capacity to dominate others over the long term, if its constituents have such ugly desires.

Monday, December 1st, 2014

Last month the Free Software Foundation and Software Freedom Conservancy launched, “a collaborative project to create and disseminate useful information, tutorial material, and new policy ideas regarding all forms of copyleft licensing.” The main feature of the project now is a 157 page tutorial on the GPL which assembles material developed over the past 10 years and a new case study. I agreed to write a first draft of material covering CC-BY-SA, the copyleft license most widely used for non-software works. My quote in the announcement: “I’m glad to bring my knowledge about the Creative Commons copyleft licenses as a contribution to improve further this excellent tutorial text, and I hope that as a whole can more generally become a central location to collect interesting ideas about copyleft policy.”

I tend to offer apologia to copyleft detractors and criticism to copyleft advocates, and cheer whatever improvements to copyleft licenses can be mustered (I hope to eventually write a cheery post about the recent compatibility of CC-BY-SA and the Free Art License), but I’m far more interested in copyleft licenses as prototypes for non-copyright policy.

For now, below is that first draft. It mostly stands alone, but might be merged in pieces as the tutorial is restructured to integrate material about non-GPL and non-software copyleft licenses. Your patches and total rewrites welcome!

Detailed Analysis of the Creative Commons Attribution-ShareAlike Licenses

This tutorial gives a comprehensive explanation of the most popular free-as-in-freedom copyright licenses for non-software works, the Creative Commons Attribution-ShareAlike (“CC-BY-SA”, or sometimes just “BY-SA”) – with an emphasis on the current version 4.0 (“CC-BY-SA-4.0”).

Upon completion of this part of the tutorial, readers can expect to have learned the following:

  • The history and role of copyleft licenses for non-software works.
  • The differences between the GPL and CC-BY-SA, especially with respect to copyleft policy.
  • The basic differences between CC-BY-SA versions 1.0, 2.0, 2.5, and 4.0.
  • An understanding of how CC-BY-SA-4.0 implements copyleft.
  • Where to find more resources about CC-BY-SA compliance.

FIXME this list should be more aggressive, but material is not yet present

WARNING: As of November 2014 this part is brand new, and badly needs review, referencing, expansion, error correction, and more.

Freedom as in Free Culture, Documentation, Education…

Critiques of copyright’s role in concentrating power over and making culture inaccessible have existed throughout the history of copyright. Few contemporary arguments about “copyright in the digital age” have not already been made in the 1800s or before. Though one can find the occasional ad hoc “anti-copyright”, “no rights reserved”, or pro-sharing statement accompanying a publication, use of formalized public licenses for non-software works seems to have begun only after the birth of the free software movement and of widespread internet access among elite populations.

Although they have much older antecedents, contemporary movements to create, share, and develop policy encouraging “cultural commons”, “open educational resources”, “open access scientific publication” and more, have all come of age in the last 10-15 years – after the huge impact of free software was unmistakable. Additionally, these movements have tended to emphasize access, with permissions corresponding to the four freedoms of free software and the use of fully free public licenses as good but optional.

It’s hard not to observe that it seems the free software movement arose more or less shortly after as it became desirable (due to changes in the computing industry and software becoming unambiguously subject to copyright in the United States by 1983), but non-software movements for free-as-in-freedom knowledge only arose after they became more or less inevitable, and only begrudgingly at that. Had a free culture “constructed commons” movement been successful prior to the birth of free software, the benefits to computing would have been great – consider the burdens of privileged access to proprietary culture for proprietary software through DRM and other mechanisms, toll access to computer science literature, and development of legal mechanisms and policy through pioneering trial-and-error.

Alas, counterfactual optimism does not change the present – but might embolden our visions of what freedom can be obtained and defended going forward. Copyleft policy will surely continue to be an important and controversial factor, so it’s worth exploring the current version of the most popular copyleft license intended for use with non-software works, Creative Commons Attribution-ShareAlike 4.0 International (CC-BY-SA-4.0), the focus of this tutorial.

Free Definitions

When used to filter licenses, the Free Software Definition and Open Source Definition have nearly identical results. For licenses primarily intended for non-software works, the Definition of Free Cultural Works and Open Definition similarly have identical results, both with each other and with the software definitions which they imitate. All copyleft licenses for non-software works must be “free” and “open” per these definitions.

There are various other definitions of “open access”, “open content”, and “open educational resources” which are more subject to interpretation or do not firmly require the equivalent of all four freedoms of the free software definition. While these definitions are not pertinent to circumscribing the concept of copyleft – which is about enforcing all four freedoms, for everyone. But copyleft licenses for non-software works are usually considered “open” per these other definitions, if they are considered at all.

The open access to scientific literature movement, for example, seems to have settled into advocacy for non-copyleft free licenses (CC-BY) on one hand, and acceptance of highly restrictive licenses or access without other permissions on the other. This creates practical problems: for example, nearly all scientific literature either may not be incorporated into Wikipedia (which uses CC-BY-SA) or may not incorporate material developed on Wikipedia – both of which do happen, when the licenses allow it. This tutorial is not the place to propose solutions, but let this problem be a motivator for encouraging more widespread understanding of copyleft policy.

Non-software Copylefts

Copyleft is a compelling concept, so unsurprisingly there have been many attempts to apply it to non-software works – starting with use of GPLv2 for documentation, then occasionally for other texts, and art in various media. Although the GPL was and is perfectly usable for any work subject to copyright, several factors were probably important in preventing it from being the dominant copyleft outside of software:

  • the GPL is clearly intended first as a software license, thus requiring some perspective to think of applying to non-software works;
  • the FSF’s concern is software, and the organization has not strongly advocated for using the GPL for non-software works;
  • further due to the (now previous) importance of its hardcopy publishing business and desire to retain the ability to take legal action against people who might modify its statements of opinion, FSF even developed a non-GPL copyleft license specifically for documentation, the Free Documentation License (FDL; which ceases to be free and thus is not a copyleft if its “invariant sections” and similar features are used);
  • a large cultural gap and lack of population overlap between free software and other movements has limited knowledge transfer and abetted reinvention and relearning;
  • the question of what constitutes source (“preferred form of the work for making modifications”) for many non-software works.

As a result, several copyleft licenses for non-software works were developed, even prior to the existence of Creative Commons. These include the aforementioned FDL (1998), Design Science License (1999), Open Publication License (1999; like the FDL it has non-free options), Free Art License (2000), Open Game License (2000; non-free options), EFF Open Audio License (2001), LinuxTag Green OpenMusic License (2001; non-free options) and the QING Public License (2002). Additionally several copyleft licenses intended for hardware designs were proposed starting in the late 1990s if not sooner (the GPL was then and is now also commonly used for hardware designs, as is now CC-BY-SA).1

At the end of 2002 Creative Commons launched with 11 1.0 licenses and a public domain dedication. The 11 licenses consisted of every non-mutually exclusive combination of at least one of the Attribution (BY), NoDerivatives (ND), NonCommercial (NC), and ShareAlike (SA) conditions (ND and SA are mutually exclusive; NC and ND are non-free). Three of those licenses were free (as was the public domain dedication), two of them copyleft: CC-SA-1.0 and CC-BY-SA-1.0.

Creative Commons licenses with the BY condition were more popular, so the 5 without (including CC-SA) were not included in version 2.0 of the licenses. Although CC-SA had some advocates, all who felt very strongly in favor of free-as-in-freedom, its incompatibility with CC-BY-SA (meaning had CC-SA been widely used, the copyleft pool of works would have been further fragmented) and general feeling that Creative Commons had created too many licenses led copyleft advocates who hoped to leverage Creative Commons to focus on CC-BY-SA.

Creative Commons began with a small amount of funding and notoriety, but its predecessors had almost none (FSF and EFF had both, but their entries were not major focuses of those organizations), so Creative Commons licenses (copyleft and non-copyleft, free and non-free) quickly came to dominate the non-software public licensing space. The author of the Open Publication License came to recommend using Creative Commons licenses, and the EFF declared version 2.0 of the Open Audio License compatible with CC-BY-SA and suggested using the latter. Still, at least one copyleft license for “creative” works was released after Creative Commons launched: the Against DRM License (2006), though it did not achieve wide adoption. Finally a font-specific copyleft license (SIL Open Font License) was introduced in 2005 (again the GPL, with a “font exception”, was and is now also used for fonts).

Although CC-BY-SA was used for licensing “databases” almost from its launch, and still is, copyleft licenses specifically intended to be used for databases were proposed starting from the mid-2000s. The most prominent of those is the Open Database License (ODbL; 2009). As we can see public software licenses following the subjection of software to copyright, interest in public licenses for databases followed the EU database directive mandating “sui generis database rights”, which began to be implemented in member state law starting from 1998. How CC-BY-SA versions address databases is covered below.

Aside on share-alike non-free therefore non-copylefts

Many licenses intended for use with non-software works include the “share-alike” aspect of copyleft: if adaptations are distributed, to comply with the license they must be offered under the same terms. But some (excluding those discussed above) do not grant users the equivalent of all four software freedoms. Such licenses aren’t true copylefts, as they retain a prominent exclusive property right aspect for purposes other than enforcing all four freedoms for everyone. What these licenses create are “semicommons” or mixed private property/commons regimes, as opposed to the commons created by all free licenses, and protected by copyleft licenses. One reason non-free public licenses might be common outside software, but rare for software, is that software more obviously requires ongoing maintenance.2 Without control concentrated through copyright assignment or highly asymmetric contributor license agreements, multi-contributor maintenance quickly creates an “anticommons” – e.g., nobody has adequate rights to use commercially.

These non-free share-alike licenses often aggravate freedom and copyleft advocates as the licenses sound attractive, but typically are confusing, probably do not help and perhaps stymie the cause of freedom. There is an argument that non-free licenses offer conservative artists, publishers, and others the opportunity to take baby steps, and perhaps support better policy when they realize total control is not optimal, or to eventually migrate to free licenses. Unfortunately no rigorous analysis of any of these conjectures exists. The best that can be done might be to promote education about and effective use of free copyleft licenses (as this tutorial aims to do) such that conjectures about the impact of non-free licenses become about as interesting as the precise terms of proprietary software EULAs – demand freedom instead.

In any case, some of these non-free share-alike licenses (also watch out for aforementioned copyleft licenses with non-free and thus non-copyleft options) include: Open Content License (1998), Free Music Public License (2001), LinuxTag Yellow, Red, and Rainbow OpenMusic Licenses (2001), Open Source Music License (2002), Creative Commons NonCommercial-ShareAlike and Attribution-NonCommercial-ShareAlike Licenses (2002), Common Good Public License (2003), and Peer Production License (2013). CC-BY-NC-SA is by far the most widespread of these, and has been versioned with the other Creative Commons licenses, through the current version 4.0 (2013).

Creative Commons Attribution-ShareAlike

The remainder of this tutorial exclusively concerns the most widespread copyleft license intended for non-software works, Creative Commons Attribution-ShareAlike(CC-BY-SA). But, there are actually many CC-BY-SA licenses – 5 versions (6 if you count version 2.1, a bugfix for a few jurisdiction “porting” mistakes), ports to 60 jurisdictions – 96 distinct CC-BY-SA licenses in total. After describing CC-BY-SA and how it differs from the GPL at a high level, we’ll have an overview of the various CC-BY-SA licenses, then a section-by-section walkthrough of the most current and most clear of them – CC-BY-SA-4.0.

CC-BY-SA allows anyone to share and adapt licensed material, for any purpose, subject to providing credit and releasing adaptations under the same terms. The preceding sentence is a severe abridgement of the “human readable” license summary or “deed” provided by Creative Commons at the canonical URL for one of the CC-BY-SA licenses – the actual license or “legalcode” is a click away. But this abridgement, and the longer the summary provided by Creative Commons are accurate in that they convey CC-BY-SA is a free, copyleft license.

GPL and CC-BY-SA differences

FIXME this section ought refernence GPL portion of tutorial extensively

There are several differences between the GPL and CC-BY-SA that are particularly pertinent to their analysis as copyleft licenses.

The most obvious such difference is that CC-BY-SA does not require offering works in source form, that is their preferred form for making modifications. Thus CC-BY-SA makes a huge tradeoff relative to the GPL – CC-BY-SA dispenses with a whole class of compliance questions which are more ambiguous for some creative works than they are for most software – but in so doing it can be seen as a much weaker copyleft.

Copyleft is sometimes described as a “hack” or “judo move” on copyright, but the GPL makes two moves, though it can be hard to notice they are conceptually different moves, without the contrast provided by a license like CC-BY-SA, which only substantially makes one move. The first move is to neutralize copyright restrictions – adaptations, like the originally licensed work, will effectively not be private property (of course they are subject to copyright, but nobody can exercise that copyright to prevent others’ use). If copyright is a privatized regulatory system (it is), the first move is deregulatory. The second move is regulatory – the GPL requires offer of source form, a requirement that would not hold if copyright disappeared, absent a different regulatory regime which mandated source revelation (one can imagine such a regime on either “pragmatic” grounds, e.g., in the interest of consumer protection, or on the grounds of enforcing software freedom as a universal human right).

FIXME analysis of differences in copyleft scope (eg interplay of derivative works, modified copies, collections, aggregations, containers) would be good here but might be difficult to avoid novel research

CC-BY-SA makes the first move3 but adds the second in a limited fashion. It does not require offer of preferred form for modification nor any variation thereof (e.g., the FDL requires access to a “transparent copy”). CC-BY-SA does prohibit distribution with “effective technical measures” (i.e., digital restrictions management or DRM) if doing so limits the freedoms granted by the license. We can see that this is regulatory because absent copyright and any regime specifically limiting DRM, such distribution would be perfectly legal. Note the GPL does not prohibit distribution with DRM, although its source requirement makes DRM superfluous, and somewhat analogously, of course GPLv3 carefully regulates distribution of GPL’d software with locked-down devices – to put it simply, it requires keys rather than prohibiting locks. Occasionally a freedom advocate will question whether CC-BY-SA’s DRM prohibition makes CC-BY-SA a non-free license. Few if any questioners come down on the side of CC-BY-SA being non-free, perhaps for two reasons: first, overwhelming dislike of DRM, thus granting the possibility that CC-BY-SA’s approach could be appropriate for a license largely used for cultural works; second, the DRM prohibition in CC-BY-SA (and all CC licenses) seems to be mainly expressive – there are no known enforcements, despite the ubiquity of DRM in games, apps, and media which utilize assets under various CC licenses.

Another obvious difference between the GPL and CC-BY-SA is that the former is primarily intended to be used for software, and the latter for cultural works (and, with version 4.0, databases). Although those are the overwhelming majority of uses of each license, there are areas in which both are used, e.g., for hardware design and interactive cultural works, where there is not a dominant copyleft practice or the line between software and non-software is not absolutely clear.

This brings us to the third obvious difference, and provides a reason to mitigate it: the GPL and CC-BY-SA are not compatible, and have slightly different compatibility mechanisms. One cannot mix GPL and CC-BY-SA works in a way that creates a derivative work and comply with either of them. This could change – CC-BY-SA-4.0 introduced4 the possibility of Creative Commons declaring CC-BY-SA-4.0 one-way (as a donor) compatible with another copyleft license – the GPL is obvious candidate for such compatibility. Discussion is expected to begin in late 2014, with a decision sometime in 2015. If this one-way compatibility were to be enacted, one could create an adaptation of a CC-BY-SA work and release the adaptation under the GPL, but not vice-versa – which makes sense given that the GPL is the stronger copyleft.

The GPL has no externally declared compatibility with other licenses mechanism (and note no action from the FSF would be required for CC-BY-SA-4.0 to be made one-way compatible with the GPL). The GPL’s compatibility mechanism for later versions of itself differs from CC-BY-SA’s in two ways: the GPL’s is optional, and allows for use of the licensed work and adaptations under later versions; CC-BY-SA’s is non-optional, but only allows for adaptations under later versions.

Fourth, using slightly different language, the GPL and CC-BY-SA’s coverage of copyright and similar restrictions should be identical for all intents and purposes (GPL explicitly notes “semiconductor mask rights” and CC-BY-SA-4.0 “database rights” but neither excludes any copyright-like restrictions). But on patents, the licenses are rather different. CC-BY-SA-4.0 explicitly does not grant any patent license, while previous versions were silent. GPLv3 has an explicit patent license, while GPLv2’s patent license is implied (see [gpl-implied-patent-grant] and [GPLv3-drm] for details). This difference ought give serious pause to anyone considering use of CC-BY-SA for works potentially subject to patents, especially any potential licensee if CC-BY-SA licensor holds such patents. Fortunately Creative Commons has always strongly advised against using any of its licenses for software, and that advice is usually heeded; but in the space of hardware designs Creative Commons has been silent, and unfortunately from a copyleft (i.e., use mechanisms at disposal to enforce user freedom) perspective, CC-BY-SA is commonly used (all the more reason to enable one-way compatibility, allowing such projects to migrate to the stronger copyleft).

The final obvious difference pertinent to copyleft policy between the GPL and CC-BY-SA is purpose. The GPL’s preamble makes it clear its goal is to guarantee software freedom for all users, and even without the preamble, it is clear that this is the Free Software Foundation’s driving goal. CC-BY-SA (and other CC licenses) state no purpose, and (depending on version) are preceded with a disclaimer and neutral “considerations for” licensors and licensees to think about (the CC0 public domain dedication is somewhat of an exception; it does have a statement of purpose, but even that has more of a feel of expressing yes-I-really-mean-to-do-this than a social mission). Creative Commons has always included elements of merely offering copyright holders additional choices and of purposefully creating a commons. While CC-BY-SA (and initially CC-SA) were just among the 11 non-mutually exclusive combinations of “BY”, “NC”, “ND”, and “SA”, freedom advocates quickly adopted CC-BY-SA as “the” copyleft for non-software works (surpassing previously existing non-software copylefts mentioned above). Creative Commons has at times recognized the special role of CC-BY-SA among its licenses, e.g., in a statement of intent regarding the license made in order to assure Wikimedians considering changing their default license from the FDL to CC-BY-SA that the latter, including its steward, was acceptably aligned with the Wikimedia movement (itself probably more directly aligned with software freedom than any other major non-software commons).

FIXME possibly explain why purpose might be relevant, eg copyleft instrument as totemic expression, norm-setting, idea-spreading

FIXME possibly mention that CC-BY-SA license text is free (CC0)

There are numerous other differences between the GPL and CC-BY-SA that are not particularly interesting for copyleft policy, such as the exact form of attribution and notice, and how license translations are handled. Many of these have changed over the course of CC-BY-SA versioning.

CC-BY-SA versions

FIXME section ought explain jurisdiction ports

This section gives a brief overview of changes across the main versions (1.0, 2.0, 2.5, 3.0, and 4.0) of CC-BY-SA, again focused on changes pertinent to copyleft policy. Creative Commons maintains a page detailing all significant changes across versions of all of its CC-BY* licenses, in many cases linking to detailed discussion of individual changes.

As of late 2014, versions 2.0 (the one called “Generic”; there are also 18 jurisdiction ports) and 3.0 (called “Unported”; there are also 39 ports) are by far the most widely used. 2.0 solely because it is the only version that the proprietary web image publishing service Flickr has ever supported. It hosts 27 million CC-BY-SA-2.0 photos 5 and remains the go-to general source for free images (though it may eventually be supplanted by Wikimedia Commons, some new proprietary service, or a federation of free image sharing sites, perhaps powered by GNU MediaGlobin). 3.0 both because it was the current version far longer (2007-2013) than any other and because it has been adopted as the default license for most Wikimedia projects.

However apart from the brief notes on each version, we will focus on 4.0 for a section-by-section walkthrough in the next section, as 4.0 is improved in several ways, including understandability, and should eventually become the most widespread version, both because 4.0 is intended to remain the current version for the indefinite and long future, and it would be reasonable to predict that Wikimedia projects will make CC-BY-SA-4.0 their default license in 2015 or 2016.

FIXME subsections might not be the right strcuture or formatting here

1.0 (2002-12-16)

CC-BY-SA-1.0 set the expectation for future versions. But the most notable copyleft policy feature (apart from the high level differences with GPLv2, such as not requiring source) was no measure for compatibility with future versions (nor with the CC-SA-1.0, also a copyleft license, nor with pre-existing copyleft licenses such as GPL, FDL, FAL, and others, nor with CC jurisdiction ports, of which there were 3 for 1.0).

2.0 (2004-05-25)

CC-BY-SA-2.0 made itself compatible with future versions and CC jurisdiction ports of the same version. Creative Commons did not version CC-SA, leaving CC-BY-SA-2.0 as “the” CC copyleft license. CC-BY-SA-2.0 also adds the only clarification of what constitutes a derivative work, making “synchronization of the Work in timed-relation with a moving image” subject to copyleft.

2.5 (2005-06-09)

CC-BY-SA-2.5 makes only one change, to allow licensor to designate another party to receive attribution. This does not seem interesting for copyleft policy, but the context of the change is: it was promoted by the desire to make attribution of mass collaborations easy (and on the other end of the spectrum, to make it possible to clearly require giving attribution to a publisher, e.g., of a journal). There was a brief experiment in branding CC-BY-SA-2.5 as the “CC-wiki” license. This was an early step toward Wikimedia adopting CC-BY-SA-3.0, four years later.

3.0 (2007-02-23)

CC-BY-SA-3.0 introduced a mechanism for externally declaring bilateral compatibility with other licenses. This mechanism to date has not been used for CC-BY-SA-3.0, in part because another way was found for Wikimedia projects to change their default license from FDL to CC-BY-SA: the Free Software Foundation released FDL 1.3, which gave a time-bound permission for mass collaboration sites to migrate to CC-BY-SA. While not particularly pertinent to copyleft policy, it’s worth noting for anyone wishing to study old versions in depth that 3.0 is the first version to substantially alter the text of most of the license, motivated largely by making the text use less U.S.-centric legal language. The 3.0 text is also considerably longer than previous versions.

4.0 (2013-11-25)

CC-BY-SA-4.0 added to 3.0’s external compatibility declaration mechanism by allowing one-way compatibility. After release of CC-BY-SA-4.0 bilateral compatibility was reached with FAL-1.3. As previously mentioned, one-way compatibility with GPLv3 will soon be discussed.

4.0 also made a subtle change in that an adaptation may be considered to be licensed solely under the adapter’s license (currently CC-BY-SA-4.0 or FAL-1.3, in the future potentially GPLv3 or or a hypothetical CC-BY-SA-5.0). In previous versions licenses were deemed to “stack” – if a work under CC-BY-SA-2.0 were adapted and released under CC-BY-SA-3.0, users of the adaptation would need to comply with both licenses. In practice this is an academic distinction, as compliance with any compatible license would tend to mean compliance with the original license. But for a licensee using a large number of works that wished to be extremely rigorous, this would be a large burden, for it would mean understanding every license (including those of jurisdiction ports not in English) in detail.

The new version is also an even more complete rewrite of 3.0 than 3.0 was of previous versions, completing the “internationalization” of the license, and actually decreasing in length and increasing in readability.

Additionally, 4.0 consistently treats database (licensing them like other copyright-like rights) and moral rights (waiving them to the extent necessary to exercise granted freedoms) – in previous versions some jurisdiction ports treated these differently – and tentatively eliminates the need for jurisdiction ports. Official linguistic translations are underway (Finnish is the first completed) and no legal ports are planned for.

4.0 is the first version to explicitly exclude a patent (and less problematically, trademark) license. It also adds two features akin to those found in GPLv3: waiver of any right licensor may have to enforce anti-circumvention if DRM is applied to the work, and reinstatement of rights after termination if non-compliance corrected within 30 days.

Finally, 4.0 streamlines the attribution requirement, possibly of some advantage to massive long-term collaborations which historically have found copyleft licenses a good fit.

The 4.0 versioning process was much more extensively researched, public, and documented than previous CC-BY-SA versionings; see for the record and for a summary of final decisions.

CC-BY-SA-4.0 International section-by-section

FIXME arguably this section ought be the substance of the tutorial, but is very thin and weak now

FIXME formatted/section-referenced copy of license should be added to license-texts.tex and referenced throughout

The best course of action at this juncture would be to read – the entire text is fairly easy to read, and should be quickly understood if one has the benefit of study of other public licenses and of copyleft policy.

The following walk-through will simply call out portions of each section one may wish to study especially closely due to their pertinence to copyleft policy issues mentioned above.

FIXME subsections might not be the right structure or formatting here

1 – Definitions

The first three definitions – “Adapted Material”, “Adapter’s License”, and “BY-SA Compatible License” are crucial to understanding copyleft scope and compatibility.

2 – Scope

The license grant is what makes all four freedoms available to licensees. This section is also where waiver of DRM anti-circumvention is to be found, also patent and trademark exclusions.

3 – License Conditions

This section contains the details of the attribution and share-alike requirements; the latter read closely with aforementioned definitions describe the copyleft aspect of CC-BY-SA-4.0.

4 – Sui Generis Database Rights

This section describes how the previous grant and condition sections apply in the case of a database subject to sui generis database rights. This is an opportunity to go down a rabbit-hole of trying to understand sui generis database rights. Generally, this is a pointless exercise. You can comply with the license in the same way you would if the work were subject only to copyright – and determining whether a database is subject to copyright and/or sui generis database rights is another pit of futility. You can license databases under CC-BY-SA-4.0 and use databases subject to the same license as if they were any other sort of work.

5 – Disclaimer of Warranties and Limitation of Liability

Unsurprisingly, this section does its best to serve as an “absolute disclaimer and waiver of all liability.”

6 – Term and Termination

This section is similar to GPLv3, but without special provision for cases in which the licensor wishes to terminate even cured violations.

7 – Other Terms and Conditions

Though it uses different language, like the GPL, CC-BY-SA-4.0 does not allow additional restrictions not contained in the license. Unlike the GPL, CC-BY-SA-4.0 does not have an explicit additional permissions framework, although effectively a licensor can offer any other terms if they are the sole copyright holder (the license is non-exclusive), including the sorts of permissions that would be structured as additional permissions with the GPL. Creative Commons has sometimes called offering of separate terms (whether additional permissions or “proprietary relicensing”) the confusing name “CC+”; however where this is encountered at all it is usually in conjunction with one of the non-free CC licenses. Perhaps CC-BY-SA is not a strong enough copyleft to sometimes require additional permissions, or be used to gain commercially valuable asymmetric rights, in contrast with the GPL.

8 – Interpretation

Nothing surprising here. Note that CC-BY-SA does not “reduce, limit, restrict, or impose conditions on any use of the Licensed Material that could lawfully be made without permission under this Public License.” This is a point that Creative Commons has always been eager to make about all of its licenses. GPLv3 also “acknowledges your rights of fair use or other equivalent”. This may be a wise strategy, but should not be viewed as mandatory for any copyleft license – indeed, the ODbL attempts (somewhat self-contradictorily; it also acknowledges fair use or other rights to use) make its conditions apply even for works potentially subject to neither copyright nor sui generis database rights.


There are only a small number of court cases involving any Creative Commons license. Creative Commons lists these and some related cases at

Only two of those cases concern enforcing the terms of a CC-BY-SA license (Gerlach v. DVU in Germany, and No. 71036 N. v. Newspaper in a private Rabbinical tribunal) each hinged on attribution, not share-alike.

Further research could uncover out of compliance uses being brought into compliance without lawsuit, however no such research, nor any hub for conducting such compliance work, is known. Editors of Wikimedia Commons document some external uses of Commons-hosted media, including whether user are compliant with the relevant license for the media (often CC-BY-SA), resulting in a category listing non-compliant uses (which seem to almost exclusively concern attribution).

Compliance Resources

FIXME this section is just a stub; ideally there would also be an additional section or chapter on CC-BY-SA compliance

Creative Commons has a page on ShareAlike interpretation as well as an extensive Frequently Asked Questions for licensees which addresses compliance with the attribution condition.

English Wikipedia’s and Wikimedia Commons’ pages on using material outside of Wikimedia projects provide valuable information, as the majority of material on those sites is CC-BY-SA licensed, and their practices are high-profile.

FIXME there is no section on business use of CC-BY-SA; there probably ought to be as there is one for GPL, though there’d be much less to put.

Innovation Policy in a World With Less Scarcity

Friday, March 28th, 2014

Mark Lemley’s new paper IP in a World Without Scarcity provides good overviews of the case “that on the Internet, we increasingly get creativity in spite of, rather than because of, IP law” — the exclusivity incentive for creation story, if it were ever true, is drowning in non-exclusive creativity, and theories that distribution and revelation also require an exclusivity incentive also seem quaint given the Internet — and of 3D printing, general purpose robotics, and synthetic biology, which “share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture.” Thus, Lemley argues, economics and policy need increasingly to grapple with an end to scarcity, IP will be increasingly important, and we can draw lessons from the Internet about how this all will and should play out.

The paper is a quick read at 55 double-spaced pages. I recommend it to anyone interested in near future technology and policy. The paper’s final sentence:

Thinking about such questions has been the province of science fiction authors, but understanding what a post-scarcity economy will look like is the great task of economics for the next century.

Lemley cites two SF books very familiar to many readers: Down and Out in the Magic Kingdom by Cory Doctorow (my positive review) and The Diamond Age: Or, A Young Lady’s Illustrated Primer by Neal Stephenson, which just a few days ago I exploited in a private communication: “…the primer is an interactive learning notebook which adapts as the owner learns, informing a generation of geeks’ vision of education and development. Such tools are increasingly feasible. Will all humans have full access to, and ability to participate in the development of such tools? Only if they are developed in the commons, which will only happen with intentional action.” That’s probably a good segue into my disagreements with and additional idiosyncratic observations about IP in a World Without Scarcity.

By IP, Lemley means intellectual property: mostly copyright, patent, trademark. That has been and will be increasingly a terrible frame for thinking about policy. It gives away the farmfuture to owners of the past, who, as Lemley notes “will fight the death of scarcity” as they have fought the Internet — with more criminalization, more lawsuits, more attempts to fundamentally alter technologies in order to protect their rents. This seems rather suboptimal given that we know the theory upon which IP rests is largely bunk. The alternative, assuming we still only wish to maximize innovation, is to make innovation policy the frame. This makes turning the enclosure dial up or down a sideshow, and pulls in non-enclosure incentives and a host of more indirect and probably much more important determinants of innovation, e.g., education and governance.

The paper provides a couple reasons for focusing on the enclosure version of IP (Lemley doesn’t need any reason; he’s an IP scholar, and though I wish such people would reconceptualize themselves as commons scholars, I have no expectation; in any case the “reasons” are my reading). First, the framing isn’t as harmful as I made it out to be, because IP owners’ fight against the Internet “didn’t work. Copyright infringement remains rampant” and against other democratizing technologies, “IP owners will (probably) lose that fight.” But winning isn’t binary, nor is the continued existence of rampant copyright infringement a good indicator.

Given that network effects are highly relevant for many kinds of knowledge products — a tool or experience is much more valuable if other people can be expected to know it — a significant level of piracy can be profit-maximizing for an IP rent collector. Better indicators might be the collapse of profits from IP rents (the movie industry continues to grow, and while the recorded music industry has declined from its peak, this is nothing like an icehouse collapse, and many other IP rent sectors continue to grow) and the displacement of IP rent collectors as the marketers the dominant knowledge products of the age by other entities better adapted to a world in which fighting against the Internet doesn’t work (the mass and high-status markets are dominated by IP rent collectors in nearly all fields, exceptions being encyclopedias and certain kinds of infrastructure software). These might be minor, highly debatable (maybe the music industry will soon recommence a full collapse, be joined by movies, both displaced by crowdfunding and crowdmarketing; I doubt it given the properties controlled by IP rent collectors and other entities’ unchanged desperation to cut unfavorable deals with them) quibbles, if the IP owners’ “losing” fight against the Internet hadn’t significantly damaged the Internet.

But the Internet has been damaged by the IP owners’ fight. Absent an academic characterization of how significant that damage is (which I would love to read), here are some of the ways:

  • Chilling effect on P2P research, result: more centralization;
  • Services police user content; expensive, barrier to entry, result: more centralization, near monopoly platforms;
  • Services cut rare and unfavorable deals with IP owners, result: same;
  • Innovative services fail to cut deals, or sustainable deals, with IP owners, result: less innovation, more Internet as TV;
  • Monopoly abets monopoly; creates opportunities for bundling monopolies, result: threat to net neutrality;
  • Copyright-based censorship provides cover for all kinds of political censorship, result: political censors have additional justification, doing what Hollywood does;
  • All of above centralization and monopoly makes dominant entities a target for compromise, result: mass surveillance and non-state cybercrime abetted;
  • Our imagination and expectation of what the Internet makes possible is diminished, result: DRM TV and radio and silos organized for spying are seen as the norm, information organized for public benefit such as Wikipedia, unusual; this flipping of democratic hopes for the Internet, a partial AOL scenario, is collateral damage from the IP owners’ war on the Internet.

Similar damage will be done to the potential of new technologies with Internet-like characteristics (in addition to those discussed in the paper, others add the Internet of Things, distributed energy generation, and educational technologies, e.g., Jeremy Rifkin in his new book The Zero Marginal Cost Society, which I plan to review soon) by incumbents. This makes Lemley’s policy recommendations seem overly tentative and timid:

[It] is hard to translate this skepticism into immediate policy prescriptions, both because the whole point is that the need for IP will be sensitive to individual industry characteristics and because the technologies I am discussing are still in their infancy […] “we should resist the tendency to expand IP reflexively to meet every new technological challenge” […] “IP owners should not be allowed to reach beyond suing infringers and seek to shut down or modify the technology itself” […] “IP law needs to make it easier for creators to opt out of the IP regime.”

IP rent collectors will not hold off protecting their interests pending idealized analysis of more fully developed technologies. The damage they do will be built into another generation of technology and society, with IP scholars and activists left to worry that policy is contrary to evidence and to take rearguard actions to protect the level of openness they’ve become accustomed to, but fail to imagine what would have been possible had the stranglehold of IP rent collectors been broken. Just like the Internet today. I’ll come back to less timid and more proactive policy response in a bit.

Second reason for focus on the enclosure version of IP, the usual — big budget movies (and regulated pharma, mentioned earlier in the paper):

There is still a role for IP on the Internet. There are some works that are so costly to create even in the digital world that they are unlikely to be made without effective IP protection. Big-budget movies and video games cost hundreds of millions of dollars to make. No amount of creative fire will drive someone who doesn’t have hundreds of millions of dollars to make Peter Jackson’s Lord of the Rings trilogy. They need corporate backing, and the corporate backers need a revenue stream. But in the Internet era those works are increasingly the the exception, not the rule.

My usual response — we should allow enclosure of our freedom, equality, and the democratic potential of the Internet in order to ensure an ongoing supply of spectacle provided in the same way it has for decades? Spectacle over freedom, really? Of course the “reason” is far more pessimal than that, as the cost of producing and distributing spectacle is going down fast, as is the cost of coordinating distributed patrons who want product, not rent collection. Further, because culture is also so dominated by network effects, we’ll all love whatever spectacle is produced, whether it took 15 or 500 months of work per minute of spectacle. It’s not as insane to contemplate threatening liberal values in order to get new drugs as it is to get new movies — but then considering non-enclosure mechanisms for developing and evaluating new drugs, and the issues of access and equality are more pressing…

More Lemley:

IP is essentially a form of government regulation. The government restricts entry into the market, or alternatively controls the price at which that entry can occur, in order to serve valuable social ends. But regulation is not a moral entitlement or something that we must take for granted. In the past, government regulated all sorts of industries – railroads, trucking, electric power, gas, telephones – because it could not see given the economics of those industries how a free market could produce socially optimal results. But in a surprising number of cases, when we deregulated those industries we found that the market could indeed find a way to supply goods we thought would be provided only with government rule-making. IP is no different in this respect than any other form of regulation. Regulation as a whole shouldn’t disappear, but regulation of particular industries often turns out to be a reflexive response to a failure of imagination, something we do because we have done it for so long that we cannot imagine how a market in that industry could function without it.

This is certainly superior to the rights/owner/property characterization inherent in IP — it recasts “owners” as beneficiaries of regulation — and I think implicitly makes the case for switching one’s frame from intellectual property to innovation policy. That leads us to what the goal of “innovation policy” regulation ought be, and sufficiently proactive policies to achieve that. Should the goal be to maximize “innovation”, “creativity”, the “progress of science and useful arts”, or the like? It would be a huge improvement to sideline enclosure as the primary mechanism and retain the same top objective. But even that improvement would be short sighted, given how systematically innovation policy regulation has and will increasingly shape society. A success of imagination would be to make freedom and equality the top objectives of and constraints on innovation policy, and only then maximize innovation. The innovations generated by a free and equal society are the ones I want. Others are to be gawked at with dismay and guilt.

On proactive policies required, in brief they are pro-commons policies, and I return to Benkler:

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance. Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

Which implies that commons scholarship ought displace intellectual property scholarship (except as a historical investigation of commons malgovernance).

I realize that I haven’t provided any specific pro-commons policy recommendations in this post, nevermind any that are especially pertinent in a world with less scarcity. I’m deeply skeptical that lower, different costs substantially change innovation policy or knowledge commons arguments — the same ones have recurred since at least the 1800s — and am extremely doubtful that the usual assumption that digital networks fundamentally change desirable policy (or here, that further technologies with digital network like characterizations further change desirable policy) is true or non-harmful — these assumptions give away (legitimize) the past to those who now use it to control the future. Some short term and narrow but valuable pro-commons policy suggestions arising from the Wikimedia movement; the free software movement offers other suggestions, if we take some of its practices as prototypes for regulation enforced by mechanisms other than copyright holder whim, more powerful and better aligned with its claims of software freedom as a human right.

A few final quotes from Lemley’s IP in a World Without Scarcity, first two from footnotes:

The challenge posed to copyright by collective production sites like Wikipedia is not just one of the need for incentives. Collective production challenges the whole concept of authorship.

Indeed, and as I keep repeating effective product competition from the commons (such as Wikipedia) re-imagines the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible.

It is possible that creators create in hopes of being one of the few superstars whose work is actually rewarded by copyright law. It is well known that people systematically overvalue the prospect of a large but unlikely reward; that’s why they buy lottery tickets. Some scholars have suggested that the same effect may be at work in IP. But if so, the incentive on which we rely is, as Kretschmer puts it, “based on a systematic cognitive mistake.” In effect, we are coaxing works out of these creators by lying to them about their chances of getting paid.

This has long struck me as being the case. The question is then (in addition to considerations above), do we really want a culture dominated by fools and sell-outs?

A world without scarcity requires a major rethinking of economics, much as the decline of the agrarian economy did in the 19th century. How will our economy function in a world in which most of the things we produce are cheap or free? We have lived with scarcity for so long that it is hard even to begin to think about the transition to a post-scarcity economy. IP has allowed us to cling to scarcity as an organizing principle in a world that no longer demands it. But it will no more prevent the transition than agricultural price supports kept us all farmers. We need a post-scarcity economics, one that accepts rather than resists the new opportunities technology will offer us. Developing that economics is the great task of the 21st century.

But we should aim for much better than the travesty of developed country agricultural policy (even before considering its baneful intersection with IP) as the legacy of this transition! But the consequences of continued capture of innovation policy have the potential to be far worse. Even if few are employed in information industries, there is no transition on the way to displace arranging information as the dominant mode of the economy (however measured; previous modes being hunting/gathering, agriculture, and industry); if the mode is largely controlled by rent collectors, the result could be a very unfree and unequal society — perhaps on the order of pre-industrial agricultural societies.

Document marketing freedom 0.1

Wednesday, March 26th, 2014

Yesterday (emphasis added):

Microsoft’s DOS-based version of Word, first released in 1983, was not a success against the dominant word processor of that era, WordPerfect. The 1989 release of Word for Windows changed all that: within four years it was generating over half the worldwide word processing market revenue. It was a remarkable marketing and engineering achievement. We are today revealing the technical magic by releasing the source code to version 1.1a of Word for Windows.

Today (March 26) is Document Freedom Day, promoting open standards. I’m all for open standards, particularly as a matter of policy at all levels, and hats off to DFD for any increased awareness of the rationale for open standards and demand for open standards that result from DFD activities. But non-open formats’ domination of word processing and many other fields is not due to advocacy of closed standards, and I doubt generic advocacy of open formats will lead to the liberation of word processing or any other field.

Individuals and organizations adopt specific software. There’s lots of remarkable engineering behind specific programs which implement open standards. Remarkable marketing (broadly construed — any sales or adoption effort) of such programs? It should be no surprise that free/open products (this applies to much more than software) in almost all mass markets remain marginal — the result of failure to compete with proprietary/closed vendors on marketing (previously stated).

In my DFD post last year I called out LibreOffice and Jitsi as open standard implementing programs needing promotion. Each has made lots of engineering progress in the past year. Please let me know if I’ve missed corresponding marketing progress. (This is not a criticism of either project. I’m sure they’d each love marketing help. LibreOffice does have some community marketing efforts.)

Granted, remarkable marketing of free/open products might be as different from marketing of proprietary/closed products as engineering/provisioning of same can be different, and public policy advocacy might be a disproportionate part of remarkable free/open marketing. But lack of direct competition in the non-policy market seems to make free/open policy advocacy much harder — anyone can see when an abstract policy mandating some form of open concretely means adopting software or some other product that few people are already using (consider how much value of software and other knowledge products is driven by network effects) — a tough sell.

Producing Open Source Software (2005) gathers lots of wisdom and a 2nd edition is due this year. I suspect we’re at about 1995 for a hypothetical Marketing Open Source Software (and other open stuff) — not much wisdom to gather, and lots of doubt about whether out-marketing proprietary/closed vendors is even feasible.

Free Bassel & Open Borders Days

Saturday, March 15th, 2014

March 15, another year of Bassel Khartibil’s life as a political prisoner in Syria. Some friends put together a cookbook (pdf) with meals they’d like to share with him when he is free.

Macabre image for a macabre situation.

March 16 is Open Borders Day. Bassel apparently returned to Syria voluntarily. There are millions who have little chance of leaving dictatorships, war zones, and grinding poverty — not because they are imprisoned by the local regime, but because we allow the international apartheid system to stand.

Shaver: Copyright and Inequality

Thursday, February 27th, 2014

copyright inequality iconI really enjoyed Copyright and Inequality, a new paper by Lea Shaver forthcoming in the Washington University Law Review — enough to attempt a summary on first read, and to read a second time, aloud, in hope that some people who would never read a 52 page paper might still hear its message.

The paper is highly readable, a large part of it (“A Case Study in Book Hunger”, numbered pages 9-22, about books, languages, and the socio-economics of South Africa) of general interest, barely mentioning copyright at all — though if you start by reading that section, hopefully you’ll then read the rest of the paper to find out how copyright is implicated. May the remainder of this post be a complement.

Inequality Promotion

To put it crudely, Copyright and Inequality mostly concerns copyright’s role in keeping the poor poor, rather than its role in concentrating wealth. The latter seems even less studied than the former, but the former seems more important, unless you consider rule by plutocracy the most urgent issue in the world.

In the category of keeping the poor poor, the magnitude of copyright’s negative impact on neglected language (cf. neglected disease) populations was new to me — the requirement of permission to translate contributes to almost no books being available in these languages, for pleasure, or for education, the latter creating a bottleneck for further life opportunities (n.b. “everyone should learn English” is a multi-generation strategy only successfully carried out by wealthy countries so far).

The cost issue is obvious, but can hardly be repeated enough. Shaver provides the example of books (when available at all, almost always in English) costing 2x as much in South Africa as in the US or UK, while income is far lower, especially for the poor (about half of the population lives on less than US$50 a month).

Many countries are far poorer than South Africa, and large populations dependent on neglected languages are common. Many wealthy countries, the U.S. in particular, have large populations of poor and neglected language speakers. Copyright is helping keep the poor poor everywhere. (Expensive textbooks are appropriately a priority target in the U.S., but every good that carries a copyright monopoly tax contributes in some combination to material poverty and cultural exclusion.)

Shaver makes a very strong case for including distributive justice in copyright discourse, along the way summarizing well known problems with the dominant romantic authorship + incentive narrative which has sidelined equality. She doesn’t push for any single solution, but the most interesting discussion is of the possibility of a carve out for translation to neglected languages, along the lines of such for braille and audio versions for use by blind users. Shaver says that copyright term extension should be opposed (additionally) for distributive justice concerns, but term reduction is “politically impossible” due to treaty obligation. (In what other fields is scholarly discourse on substantially alternative and obviously superior arrangements — the current regime based on “more fallacy than fact” — so readily discarded?)


Copyright and Inequality mentions free/open/commons production or distribution briefly in a few places:

  • Another scholar mentioned commons-based peer production in the context of patents.
  • The “more radical” (than providing access at public libraries) solution of “allocating public textbook funds to the production of Open Educational Resources.” (Actually a rapidly growing practice.)
  • “Open business models” meaning very broadly cultural production not dependent on restricting copying.
  • “Limited commons”, e.g., copyright might be relaxed for a neglected language, but translations of new works in that language to non-neglected languages would be fully restricted.

I’m happy that these are included at all, but commons advocates need to make full versions central. A carve out for translation to neglected languages would be better than none, but if it is achieved, will take many years of negotiation, and be riddled with requirements that will limit effectiveness (as Shaver notes is the case with carve outs for disability), and obviously would leave all non-linguistic copyright inequality mechanisms, and the resources of interest groups that support enclosure, fully intact. Commons-based funding mandates and peer production can happen much faster, and are anything but politically impossible, and can make a huge impact, far beyond a “patch”.

This potential huge impact might hold especially for neglected languages, which essentially are not being served at all by proprietary production. For everyone, as I’ve said many times, product competition from the commons both reduces the resources available to enclosure industries to lobby for protectionism and re-imagines the range of desirable policy, in sum shifting what is politically possible.

Buttressed with recognition of copyright inequality, in particular its negative impact on neglected language populations, what might various commons advocates, projects, and movements do? Some off-the-cuff notes:

  • I’ve long admired Wikimedia’s commitment to host its projects (Wikipedia and friends) for any language community capable of maintaining a project, even a very small one, and its enunciation of the importance of this commitment and of Wikimedia’s freedom (as a non-profit) to pursue such a commitment. The result so far includes Wikipedia in 287 languages and much more, with even more in incubation, formal and informal movement communities around the world, a program to make Wikipedia access free of mobile data charges in the developing world, and probably much more I’m not aware of. Should the findings of Copyright and Inequality lead the various parts of the Wikimedia movement to multiply their efforts to support the growth of and access to free knowledge in neglected languages and increase estimates of the Wikimedia movement’s economic values accordingly? The paper’s findings are probably already well known by the staunchest language advocates around Wikimedia, but perhaps they should be taken even more seriously than they already are. I am ignorant of the human side of Wikimedia outreach to neglected language communities, but surely there is now a substantial body of experience which could be leveraged in making further investments and partnerships. On the technical side, perhaps the migration of lots of knowledge into the truly multilingual Wikidata project could enable more projects in more languages to be truly useful, even for very small language communities?
  • The importance of first language availability of texts, especially educational materials, implies that software user interface availability in the user’s first language is probably pretty important too. What would it take to increase popular free/open source software application language support from dozens (Firefox claims over 80, LibreOffice over 30) to hundreds, even thousands of languages, thereby including most neglected languages? More collaboration across program translation efforts? More centralization? Collaboration with governments, educational systems, funders? A higher bar for user interface changes requiring translation updates? Fewer programs?
  • Fund the creation new free knowledge (inclusive of entertainment!) works in neglected languages, e.g., with small grants and prizes, and introduction of collaborative production, e.g., book sprints?
  • Market, sell, distribute, push for adoption of free knowledge works among neglected language populations — this is what publishers do (given a wealthy enough population anyway), and what must be done for the commons. Making works available online, with no promotion, only solves problems for an elite, and doesn’t offer proprietary publishers any competition, where they choose to compete.
  • Could recognition of the value of neglected languages provide an impetus for a new and large effort toward free software machine translation? Little progress has been made thus far, perhaps in part because some proprietary services such as Google Translate are gratis, and work for most non-neglected languages. Could redoubled effort to support neglected languages in Wikimedia projects (Wikisource translations might be especially relevant) and free/open source software projects help provide needed parallel corpora?
  • Awareness of the plight of neglected language populations could buttress arguments for open funding mandates, particularly if it could be demonstrated that some resulting materials were actually translated and used by said populations — neglected language translation and marketing might even be included in some such mandates, or funders and projects working with neglected language populations could specifically target translation and distribution of the “best” of the output of open funding mandates.
  • Awareness of neglected languages could buttress arguments for voluntary release of works under free/open licenses or into the public domain. (A handful of readers might note that translation-only licenses have been proposed, and a “Developing Nations” license briefly offered. The latter got almost no use before it was retired, perhaps in part because it seemed both confusing and paternalistic — and I doubt these very limited commons offer much, including in public license form. I can’t stress enough that sales/marketing/distribution/adoption are very tough and very necessary, and commons projects have largely failed at them to date. Given this, it is insane to cut off entire segments of potential collaborators, e.g., free knowledge projects and diaspora communities.)
  • Increasing commons movements’ self-awareness of their ability to help neglected language populations could buttress these movements’ self-awareness of their own political potency, leading them to act unashamedly as an interest group and to boldly stake a claim for the commons as the central paradigm for information/innovation policy, thereby further increasing their political potency, and ability to help neglected language populations. (Recursion intentional!)


Further excerpts from Copyright and Inequality:

Overall, copyright law works quite well for copyright scholars at leading universities.

Funniest sentence in the paper, presumably unintentional. (One small bit of progress would be for “copyright scholars” to re-imagine themselves as “commons scholars”; cf. copyright experts→commons experts.)

Its protections give us control over our own writings, which we can choose to invoke or to waive, as we believe best suits our own interests. Its incentives help to stimulate the production of an ever-greater variety of informative and entertaining works for our professional and personal development. Its limitations on access and use of copyrighted works only rarely pose significant problems for us. From this perspective, it is easy to miss the more profound problems posed for the 99% of the world that does not enjoy the same privileged position of access.

From this privileged perspective, creative production resembles a constantly expanding buffet of choice laid before us, among which we may select the most appealing options until we are full. Perhaps some of these offerings are being produced in languages we do not speak. No matter, more than enough choices remain. In our affluence of resources and opportunities, we might even choose to acquire fluency in a second language to further expand our choices. Copyright protection promises to raise the quality, the diversity, at the very least the sheer number of offerings placed upon the table. How could this be a bad thing? But can your peripheral vision stretch farther still? If so, you might see, standing back behind you, a hungry crowd. They are the poor. They are a majority of the world. They too admire the buffet. But they realize it is not laid for them. For some of us, the proliferation of new works is a bounty, opening up new worlds of consumer choice, new horizons of creativity to explore. For most of the world’s population, however, the expanding universe of new cultural works is yet another site of social privilege from which they are effectively excluded.

Well and powerfully said regarding the unseen and neglected, but I submit further that our forward vision is profoundly myopic. Relative to the (perhaps two billion?) people who are both poor and only read a neglected language, wealthy people with English fluency are incredibly privileged, and have ready access to an astounding and ever-growing surfeit of culturally relevant educational and entertainment materials. Those employed by wealthy universities have yet more ready access. Just before the humorous sentence:

Located in major research universities, we also enjoy supremely convenient access to the best-funded libraries in the world. As a group, we do not fail to complain when we notice that copyright law impedes our own ability to access, create, and distribute cultural works. Fortunately, our legal expertise and professional experience positions us well to both recognize the legal roots of our problems, and to suggest solutions to our legislatures and courts.

But however well positioned relative to neglected language populations or the general public of wealthy countries, these complaints and suggestions always face a tremendous uphill battle, at best. The enclosure industries are much better positioned than their scholars.

We love whatever culture we grow up in, but I doubt the one driven by the maximization of rents available from cultural products (cf.), at the expense of freedom and equality, is anywhere near the best of possible worlds, even for those with access to those products. I think an analogy to the internet is appropriate: had a small number of closed electronic services continued to dominate, and a decentralized network never developed, we would now think of the AOL, CompuServe, and Prodigy of 2014 as amazing — and they would be! The much better world of the internet would be beyond the imagination of most. Culturally, that AOLternative universe is the one we live in. But we can catch some glimpses of the internet universe, e.g., in Wikipedia, in PLOS, in memories of Napster.

Perhaps appropriately, only acting in the interests of poor and neglected language populations, against copyright inequality, will we be able to leave the AOL culture scenario and into the internet culture universe.

Closing quote from Copyright and Inequality:

An often-quoted statement by John Maynard Keynes posits that “The political problem of mankind is to combine three things: economic efficiency, social justice, and individual liberty.” The perspectives of economic efficiency and individual liberty have profoundly informed our discussion of copyright law. Yet the perspective of social justice has been comparatively absent. Reckoning with the ways in which social inequality impacts the market for copyrighted work begins to supply this missing perspective. In the end, the inequality insight also leads us back to economic efficiency and individual liberty. For a system of creative production and exchange that excludes most of the world from participation is also not economically efficient. Nor does it effectively promote individual liberty for all. To promote all three of these values, copyright policy and scholarship must account for the realities of social inequality.

Read the entire paper, and share!

Art of cc-community

Sunday, February 9th, 2014

The reading group (curated by Nate Aune) I mentioned as having started with Coase’s Penguin is on to its first book: The Art of Community: Building the New Age of Participation, 2nd Edition (2012) by Jono Bacon. It happens this corresponds with another delayed book review, though only by 18 months in this case, and largely motivated by the book including an interview with me (reproduced below).

This is a large tome. You can download it as a 20 megabyte PDF with 574 pages (linked from the book website along with usual purchase locations). I see substantial portions of about 5 books therein:

  • Autobiography of Jono Bacon. Less of this book is latent in the tome than those below, but tales of Bacon’s life are interspersed, and his personality comes through strong (n.b. Bacon uses “tales” to denote stories told within a community, not “tall tales”; similarly “fables” to denote stories that explain a community, not myths).
  • Inside the Ubuntu/Canonical Ltd. community: how it works, its tales and fables.
  • Tools and practices for managing an open source software community, especially one led by a for-profit company (corresponding to Ubuntu/Canonical Ltd. above).
  • Reference/workbook for community managers and their managers. Also interspersed throughout, but especially the chapter on hiring a community manager.
  • Community management casebook, heavily leaning on interviews with open source software project managers, but also many other types of community leaders and managers.

If any one of these piques your interest, it’s worth downloading the PDF and clicking in the ToC or word-searching, as is your style. If multiple seem compelling (say your company wants to hire a community manager, or you want to be hired as a community manager by a company), then reading the whole thing carefully would be a good use of your time.

(Of course it shouldn’t be your only reading, not least because “community management” is fraught, maybe especially in service of a for profit, and there exist plenty of criticisms of the Ubuntu/Canonical Ltd. community. I even agree with some of those criticisms, but my top level “complaint” about Ubuntu/Canonical Ltd. is that they haven’t been as successful in the marketplace as I’d like, i.e., they haven’t supplanted Microsoft! ☻ Bacon and company continue to work on that from a community angle.)


The interview with me in the book (numbered pages 492-495), conducted late 2011. The “cc-community” in the title of this post refers to a mailing list not mentioned in the interview.

You have been at the CC for a long time now. How did the organization look when you joined?

I joined CC in April, 2003, a few months after the first CC licenses were released. We were in the basement of the Stanford Law School, as that’s where Lawrence Lessig was. Various people had been involved over the preceding year, but essentially there were three staff just before I joined. There was a very loose community initially, based on the notoriety of Lessig and other founders and some friendly coverage in the usual (for the time) geek outlets such as Slashdot — more a variety of well-wishers than a community.

What kind of community did you set out to grow?

The other person CC hired in April, 2003 was our first international coordinator, based in Berlin. One community that we set out to grow, initially via this position, was a network of legal scholars around the world, who could collectively figure out how CC licenses work with copyright law in various jurisdictions around the world. This is the main community that CC was and is intentional about growing. We also set out to grow connections with related communities, eg open access, open education, open source, and mostly deliberately stayed away from trying to create “CC” subcommunities within these movements, and instead play a supporting role.

There always has been a mostly latent “CC community” of people who aren’t tied to a CC affiliate institution, and may or may not be involved with other nearby movements, but for whatever reason see CC as one of their primary passions — which is fantastic of course. CC the organization hasn’t ever really set out to “organize” this largely latent community, mostly due to lack of bandwidth (admittedly this could seem short sighted) and it isn’t clear how this community ought be cultivated — it is a very diverse set of people. I and some others see mobilizing this community (I’m actually more comfortable thinking about it as a movement) in some form as one of the biggest opportunities CC has in its next decade.

What approaches did you use to grow your community?

Regarding the international community of legal scholars we intentionally created, we gave them interesting, challenging, but highly delimited work — “porting” the CC license suite to their respective jurisdictions. (A “port” is usually both a linguistic translation and legal “translation” to reference local laws, drafting style, etc, where appropriate to hopefully make the ported licenses more understandable to the legal community in a given jurisdiction, but achieve the same affects to the extent possible.) This element of work made it relatively easy to determine what kind of team (usually composed of people from one or more local institutions) could be part of the formal community — they had to bring certain legal expertise, interest, and capacity — and gave community members a strong sense of ownership and contribution.

In the past 8 years CC licenses have been ported to over 50 jurisdictions via this process and community. In a sense this is just another instance of work occurring in chunks amenable to work being done by lots of different people, but I think the subject matter and large size and duration of the chunks makes it fairly interesting. Although many of the affiliate projects have formed their own local communities that have given feedback on license drafts, the overall process is highly controlled by experts, and openness to attracting and up-leveling drive-by contributors not much of a factor. This arrangement has been shown to not be competitive for building an encyclopedia, nor for most software and cultural projects, but perhaps should be evaluated if one thinks their project requires long-term commitment from a community with narrow and rare expertise.

Among the community involved in license porting, there has always been desire to also do advocacy and outreach, and sometimes art projects and software development. This has occurred organically, but over the last year or so we’ve also formally recognized those activities as potential responsibilities of a CC affiliate. While producing interesting work, a community that only really needs a few lawyers in each country is self-limiting. The aforementioned activities need unlimited resources, including the involvement of many more lawyers, who are crucial in persuading institutions and governments to adopt CC tools as policy, for example. Probably over the next few years there will be many more institutions and people officially involved in the CC community, with impressive outreach and projects around the world as a result.

The CC philosophy, particularly a few years ago, was fairly alien to the normal culture of content licensing and distribution practised by large record labels and studios. How did you communicate this message to your community?

Building a commons is still completely alien to “big content”; not even relevant really. Giving up the ability to legally persecute fans and users is a bridge too far for those whose dominant interest is protecting and milking existing revenue streams for however many quarters their horizon is. If it takes destroying the Internet to do that, so be it. This has to change, but the change won’t come from big content adopting CC licenses wholesale (though of course we appreciate when a progressive element does so for a project, and I’d be happy to be wrong), but through policy change that removes their ability to persecute fans. Have we reached “peak copyright” yet?

Communicating this to the CC community is not a challenge — they already knew how poorly aligned the interest and practice of big content and society are, and for many people this was a motivating factor for getting involved in CC.

The challenge has been figuring out where the commons can make a big difference, given the indifference-to-hostility of big content. The answer has arrived at fairly organically, learning both from the broader community (e.g., FLOSS, Wikipedians, the Open Access movement) and from the CC affiliate community’s work on institutional and government policy. The summary is that CC’s sweet spots are community and mass collaboration projects, where legal freedoms are necessary for a project to scale, just like in FLOSS, and in publicly interested policy, where the policymaker might be a funder, and institution, or a government. In both of these cases, the appropriate CC license or public domain tool is a standard, well understood and recognized instrument that can be made the legal basis of a project, or slotted into a broader policy intended to benefit the public, instead of engaging in expensive debate and reinvention — and there’s a big community of experts eager to help, wherever one is in the world.

There is a passionate CC community out there. How did you build a community that takes the CC ethos and spreads it further and advocating it to others?

Sharing, giving credit where due, valuing the common good, using technology to encourage such, not persecuting people who do those very natural things — things that one might recognized as “the CC ethos” — all precede CC. They’re essentially human. CC created some practical tools that one can use to further those ends and a brand that denotes such an ethos at our particular juncture in history. People would’ve been spreading that ethos in the same contexts CC is now — one can see an explosion of experiments in open content licensing in the years just before CC launched. Hopefully overall CC has made those people more effective than they would’ve been without a fairly high profile and well resourced (but tiny in the scheme of things) license steward, i.e., CC.

We did make an attempt approximately 2005-2008 to provide a nexus for open movements to meet and collaborate, a subsidiary called iCommons (now a small independent charity) that ran a series of “iSummits”. These turned out to be mostly useful for bringing the CC community together, so our next global gathering, which did not occur until September, 2011, made no pretense of being anything other than a CC summit. There remains huge opportunity to at appropriate times work together with other communities and movements with an overlapping ethos — more of that is happening, but slowly, and not under an umbrella brand.

CC is a now well established organization and community. How do you keep your community passionate about the CC and Free Culture?

Regarding the CC affiliate community (copyright and other experts mentioned above), carefully and collaboratively. Some of the core work by that community is changing — we’re working on version 4.0 of the CC license suite now, which has the aim of being unambiguously global — porting as it has been done so far may end, or at least will be a special case. We have to move and diversity the work of this community, and it has to be even more vital and challenging work, e.g. CC adoption as policy, leveraging CC’s reputation in nearby policy debates impactful to the commons, CC as a subject of legal, economic, and other research, and interfacing with WIPO and other international institutions. We have to strive to make CC a truly international organization itself. What this means for governance, staffing, fundraising, the structure of relationships with affiliates and other organizations — we don’t know yet, and will probably always be evolving.

Regarding the broader community and potential movement, the flip answer is that we don’t have to do anything. The passion is there, and free culture, open access, open education, etc, provide endless good news and opportunity for all interested — and occasionally we get a gift in the form of a ridiculously incorrect attack on CC from a big content executive — that fires everyone up. However, there’s a lot that we do, the single most important one being serving as a great license steward, which includes everything from explaining and answering questions to advocacy to actually getting the licenses “right” so that they’re the best tools for growing the commons. If our explanations of the licenses are confusing, or we have licenses that don’t serve to build the commons, it puts a real damper on the ability of the community to advocate and spread CC, and their passion for doing so.

The 4.0 process is also going to be crucial for engaging the broader community, and be a determinant of how much passion and energy we see from them over the next decade. My highest aspiration would be for the 4.0 licenses to have received overwhelming input and buy-in from both the broadest set of “netizens” (if I may use a 1990s term) interested in the common good and policymakers, forming a standard for info- and innovation-policy and norms for a generation. Coming anywhere near that goal will require lots of community organizing!

CC is a funded by donations. What approaches have you used to gather these donations?

So far the vast majority of our funding has come from U.S.-based private foundations. Our main effort for community support (which I consider the most healthy form of funding, and should over time become the most important pillar) has consisted of an annual fall campaign, mostly conducted online — think a micro version of the Wikimedia fundraising campaigns that most readers should have seen. CC has a lot of learning and growth to do here. The main reason to cultivate the CC community is that doing will be instrumental for accomplishing our mission — but it is true that we hope that a portion of the community has the means and feels our work is important enough to donate each year.

If you enjoyed that, check out the other community case book interviews: Linus Torvalds, Linux; Mike Shinoda, Linkin Park; Mårten Mickos, MySQL and Eucalyptus; Tim O’Reilly, O’Reilly Media; Carolyn Mellor, X.commerce, PayPal, and eBay; Ilan Rabinovitch, Southern California Linux Expo; Richard Esguerra, Humble Indie Bundle; Mark Bussler, Classic Game Room; Mary Colvig, Mozilla; Dries Buytaert, Drupal and Acquia; and James Spafford, Media Molecule.

If you enjoyed the book, Bacon also runs community leadership conferences.

Sleepwalking past Freedom’s Commons, or how peer production could increase democracy, equality, freedom, and innovation, all of them!

Sunday, February 9th, 2014


The most interesting parts of ‘s The Wealth of Networks concern how peer production facilitates liberal values. I’ll blog a review in the fullness of time.

In lieu of that which may never come, some motivated notes on Coase’s Penguin, or Linux and the Nature of the Firm (2002, 78 pages) and Freedom in the Commons: Towards a Political Economy of Information (2003, 32 pages; based on a 2002 lecture). A friend wanted to trial a book group with the former. Re-reading that led me to the latter, which I hadn’t read before. Reading them together, or even just the latter, might be a good alternative to reading The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006, 473 pages).

As might be expected from decade plus old internet research, some of the examples in the papers and book are a bit stale, but sadly their fundamental challenge remains largely unacknowledged, and only taken as a byproduct. I would love to be convinced otherwise. Is the challenge (or my extrapolation) wrong, unimportant, or being met satisfactorily?

Excerpts from Freedom in the Commons (emphasis added by me in all quotes that follow):

[Commons-based peer production] opens a range of new opportunities for pursuing core political values of liberal societies—democracy, individual freedom, and social justice. These values provide three vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because, however, they are often contradictory rather than complementary, the pursuit of each of these values places certain limits on how we conceive of and pursue the others, leading different liberal societies to respect them in different patterns.

An underlying efficient limit on how we can pursue any mix of arrangements to implement our commitments to democracy, autonomy, and equality, however, has been the pursuit of productivity and growth.

[Commons-based peer production] can move the boundaries of liberty along all three vectors of liberal political morality.

There is no benevolent historical force, however, that will inexorably lead the technological-economic moment to develop towards an open, diverse, liberal equilibrium. If the transformation occurs, it will lead to substantial redistribution of power and money from the twentieth-century, industrial producers of information, culture, and communications—like Hollywood, the recording industry, and the telecommunications giants—to a widely diffuse population around the globe. None of the industrial giants of yore are going to take this redistribution lying down. Technology will not overcome their resistance through some insurmountable progressive impulse. The reorganization of production, and the advances it can bring in democracy, autonomy, and social justice will emerge, if it emerges, only as a result of social and political action. To make it possible, it is crucial that we develop an understanding of what is at stake and what are the possible avenues for social and political action. But I have no illusions, and offer no reassurances, that any of this will in fact come to pass. I can only say that without an effort to focus our attention on what matters, the smoke and mirrors of flashy toys and more convenient shopping will be as enlightening as Aldous Huxley’s soma and feelies, and as socially constructive as his orgy porgy.

Let us think, then, of our being thrust into this moment as a challenge. We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will largely depend on policy choices that we will make over the next decade or two. To be able to understand these choices, to be able to make them well, we must understand that they are part of a social and political choice—a choice about how to be free, equal, and productive human beings under anew set of technological and economic conditions. As economic policy, letting yesterday’s winners dictate the terms of economic competition tomorrow is disastrous. As social policy, missing an opportunity to enrich democracy, freedom, and equality in our society, while maintaining or even enhancing our productivity, is unforgivable.

Although the claim that the Internet leads to some form or another of “decentralization” is not new, the fundamental role played in this transformation by the emergence of non-market, nonproprietary production and distribution is often over-looked, if not willfully ignored.

First, if the networked information economy is permitted to emerge from the institutional battle, it will enable an outward shift of the limits that productivity places on the political imagination. Second, a society committed to any positive combination of the three values needs to adopt robust policies to facilitate these modes of production,because facilitating these modes of production does not represent a choice between productivity and liberal values, but rather an opportunity actually to relax the efficient limit on the plausible set of political arrangements available given the constraints of productivity.

We are at a moment in our history at which the terms of freedom and justice are up for grabs. We have an opportunity to improve the way we govern ourselves—both as members of communities and as autonomous individuals. We have an opportunity to be more just at the very core of our economic system. The practical steps we must take to reshape the boundaries of the possible in political morality and to improve the pattern of liberal society will likely improve productivity and growth through greater innovation and creativity. Instead of seizing these opportunities, however, we are sleepwalking.

What arrangements favor reorganization towards commons-based peer production? From Coase’s Penguin:

This suggests that peer production will thrive where projects have three characteristics. First, they must be modular. That is, they must be divisible into components, or modules, each of which can be produced of the production of the others. This enables production to be incremental and asynchronous, pooling the efforts of different people, with different capabilities, who are available at different times. Second, the granularity of the modules is important and refers to the sizes of the project’s modules. For a peer production process to pool successfully a relatively large number of contributors, the modules should be predominately fine-grained, or small in size. This allows the project to capture contributions from large numbers of contributors whose motivation levels will not sustain anything more than small efforts toward the project. Novels, for example, at least those that look like our current conception of a novel, are likely to prove resistant to peer production. In addition, a project will likely be more efficient if it can accommodate variously sized contributions. Heterogeneous granularity will allow people with different levels of motivation to collaborate by making smaller- or larger-grained contributions, consistent with their levels of motivation. Third, and finally, a successful peer production enterprise must have low-cost integration, which includes both quality control over the modules and a mechanism for integrating the contributions into the finished product.

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance.  Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

There’s been some progress on institutional tools (i.e., policy arrangements writ large, the result of “political action” above) in the 11 or so years since (e.g., Open Access mandates), but not nearly enough to outweigh global ratcheting of intellectual freedom infringing regimes, despite the occasional success of rearguard actions against such ratcheting. Neither these rearguard actions, nor mainstream (nor reformist) discussion of “reform” put commons at the center of their concerns. The best we can expect from this sleepwalking is to muddle through, with policy protecting and promoting commons where such is coincidentally aligned with some industrial interest (often simplified to “Google” in the past several years, but that won’t last forever).

My extrapolation (again, tell me if facile or wrong): shifting production arrangements so as to favor commons-based peer production is as important as, complementary to, and almost necessary for positive policy change. Commons-based product competition simultaneously changes the facts on the ground, the range of policies imaginable, and potentially create a commons “industrial” interest group which is recognizably important to regulators and makes commons-based peer production favoring policy central to its demands — the likely Wikimedia response to the European Commission copyright consultation is a hopeful example.

There has been lots of progress on improving commons-based peer production (e.g., some trends), but also not nearly enough to keep up with proprietary innovation, particularly lacking and missing huge opportunities where proprietary incumbents real advantages sit — not production per se, but funding and distribution/marketing/cultural relevance making. Improving commons-based peer production, shifting the commanding heights (i.e., Hollywood premium video and massively expensive and captured pharma regulatory apparatus) to forms more amenable to commons-based peer production, and expanding the scope of commons-based peer production to include funding and relevance making are among the most potent political projects of our time.

Wake up. ^_^

CC11x11, before, 0, &freebassel

Monday, December 16th, 2013

Gimped CC cake 10 / BY / Kristina Alexanderson
(I wrote 90% of this post a year ago; currently unaware of any actual CC 11 cakes or celebrations.)

Today is the 11th anniversary of the launch of the first version of the first 11 Creative Commons licenses. Depending how one counts, there are now as few as 0, though 6 is probably the conventional answer (only current international versions of ones that were among the original 11), or as many as 608 (all versions, jurisdiction ports, retired licenses, and public domain instruments).

If 2002-12-16 is a significant marker, I’d like to take a look at what preceded it, very nearby — other public copyright licenses, public domain dedications, and ad hoc sharing statements. Eventually I hope to take a more in-depth look at all of these, and moreso I hope others do research around them.

Prior to the 1980s, such statements are very scattered. Has anyone pieced together commonalities and differences of pro-info-sharing statements through history? Examples…

In 868 the Diamond Sutra included:

Reverently [caused to be] made for universal free distribution by Wang Jie on behalf of his two parents on the 13th of the 4th moon of the 9th year of Xiantong.

1869 Recent Discussions on the Abolition of Patents for Inventions, setting a standard that modern books on advocating reform (inclusive of abolition) fail to meet:

No rights are reserved

1910 the English translation of Gandhi’s Indian Home Rule was printed with the words No Rights Reserved on the title page.

1967 the copyright notice of All Watched Over by Machines of Loving Grace included:

Permission is granted to reprint any of these poems in magazines, books and newspapers if they are given away free.

1976 Tiny BASIC for Intel 8080 included:


1978 In the Making included:

“Alternative publications may reproduce freely provided acknowledgement is made.”

I believe many statements along such lines were published, especially in the last century, but again, as far as I know, nobody has ever thoroughly investigated. I’m very interested, in part because I have a hunch what might be characterized as “information commons” have been malgoverned for the entirety of human history. Why did pro-sharing statements, in the form of public copyright licenses, only become regularized, widespread, and thought by some as creating and protecting commons, in the 1980s, starting with software?

The easy answer is that software had just become clearly restricted by copyright, and programmers have a more immediately compelling need to collaborate across organizational boundaries in a way that implicates copyright restrictions than do others. Still, one may question just how different paths would need to have been for explicit pro-sharing practices to have developed in other domains first, even pre-computer, and how the norms of such practices might have differed. I’ve speculated, very briefly that it’s plausible order could’ve been different, and essentially software freedom norms are a “sweet spot” that would’ve been arrived at anyway. Much more could be said about that, and also about whether and how the explicit pro-sharing practices I’ve recognized as such in this post have crowded out or complemented other pro-sharing practices.

In any case, in the 5 years prior to the launch of the first 11 Creative Commons licenses, there was a proliferation of interest in public copyright licenses for various forms of non-software works (including hardware designs, which took longer to capture much interest, and I won’t cover here). An incomplete list of such licenses released 1998-2002:

Anti-Copyright License, Comic Book Public License, Design Science License, Distributed Encyclopedia General Public License, EFF Open Audio License, Electrohippie Collective’s Ethical Open Documentation License, Ethymonics Free Music License, Free Art License, Free Media License, Free Music Public License, GNU Free Documentation License, No Type License, OpenBits License, Open Content License, Open Directory License, the Open Music licenses, Open Publication License, Open Source Music License, Public Library of Science Open Access License, QING Public Licnese, and Phy-d’eau — License of Intention for Liberty in Expression and Creativity.

Many of these licenses are non-free/open, and nearly all are incompatible with all the rest. These problems preceded Creative Commons. Whether in the past 10 years Creative Commons has on net made these problems better or worse (or merely not better fast enough) is hard to say. One curiosity about these pre-CC licenses is that the only ones remaining in any kind of significant use (Free Art License and Free Documentation License) are free/open, copyleft licenses.

Near certainty of large adoption of public licenses and public domain dedications outside software also preceded CC. The effect one can be most certain of attributing to CC is of killing adoption of the few of these licenses that had any plausibility, and of the development of further non-CC licenses, for awhile. Whether a dominant central license steward was net positive, is hard to say. It’s easy to see some marketing benefits, and some innovation costs, and vice versa.

Some public licenses created for software, mostly the GNU GPL, and BSD licenses, were used for some non-software works before the explosion of non-software public licenses (of which CC was part). An open question is whether this explosion was a good thing at all, or rather a failure on the part of free software license pioneers to occupy a broader space, and create a broader-based, less fragmented movement for intellectual freedom…the part facilitated by public licenses that is.

It’s also possible that free software started with the wrong arrangement in the form of public licenses, and others, including what became CC, ought have tried something different, for example clubs/pools, or skipping voluntary methods altogether. (Many people have focused on one or more of direct action, litigation, and public policy. I tend to think there’s far too little appreciation and collaboration across these methods and voluntary construction, resulting in a further fragmented, scared, and weak movement.)

I didn’t publish a year ago because I’d intended to add sections on the “CC era” of the past 10, now 11 years, and the future. My recent extended quasi-review of CC 4.0 licenses will have to suffice. Now…

Celebrate CC’s 11th birthday:

Upgrade to CC0

Free Bassel