Post Public Domain

Protect commons from patents

Friday, April 11th, 2014

Rob Landley has a good idea: software patents shouldn’t apply to public domain software. This is exactly the kind of commons-favoring reform that ought be topmost on the agenda of anyone who cares about a good [digital] future. It will take years for many such reforms to be feasible. This only means it is urgent for commoners of all free/open stripes to begin thinking of themselves collectively as a politically potent self-interested group, not as merely surviving through private opt-outs from increasingly bad regulation and reaction against apparent existential threats.

I’m a huge fan of the public domain and think that among private opt-outs, public domain instruments ought be used much more than they are. Landley makes an interesting case (historical and otherwise, read his full post) for limiting protection from software patents to public domain software rather than any free/open source software, but I disagree — in this reform step, it makes sense to protect developers and users of any free/open source software from patents with regard to that software.

Up to the last paragraph the rest of this post is dedicated to this disagreement (and in another sense of dedicated, to the public domain, as is everything by me), but don’t let that distract from my overall appreciation of Landley’s post — read the whole thing (his blog is also interesting overall, stylistically like early blogs, and it does have posts back to 2002, though I’ve only been following it approximately since the first link in previous paragraph: see link text “disagree”, appropriately enough).

Landley writes:

The reason to say “public domain” instead of “open source” is partly that open source is difficult to legally define

Public domain hasn’t got that problem. It avoids the whole can of worms of what is and isn’t: the code is out there with zero restrictions.

1) Existing law and regulation deals with “open source”, e.g. the U.S. Department of Defense and the Italian government. This is no significant obstacle. On the other hand, “public domain” has another problem: FUD about whether it is “legally possible” to put new works in the public domain and whether various public domain instruments “work”. This FUD needs to be combated, but I think it’ll be more effective to do so in part by getting public domain instruments recognized as free/open instruments by various gatekeepers than by dumping FUD on the same.

The price for freedom from patents should be zero restrictions: if the authors have no control over what people can do with it, why should uninvolved third parties have a say? Ideally the smooth, frictionless legal surface of the public domain should go both ways.

That’s the constitutional argument: freely redistributable, infinitely replicable code serves the stated constitutional purpose of copyrights and patents better than patents do. Releasing your copyrights into the public domain should also prevent patent claims on that code.

2) That’s a fine assertion, but it’s really outside the free/open source (and nearby) consensus on software patents: they should be abolished, i.e., one should not have to give up anything to be protected from them. Changing the focus to strategically demanding freedom from patents for free/open source software (while still agreeing they ought be abolished for all) would mark a huge shift in the imagination of the movement(s). Limiting the scope of protection to only public domain software: how is it imaginable to take that idea beyond an interesting blog post? I wish a huge constituency for public domain software existed, but as of now it is a rounding error.

3) Zero restrictions is a fine ideal (indeed, copyright and patent should be abolished entirely), but whether viewed as a “price” or grant of permissions, releasing work under any free/open license makes very significant grants. Attendant conditions may be annoying, self-defeating, necessary, or something else depending on one’s perspective (I try to view them charitably as prototypes for more effective regulation not based on copyright holder whim, but also think it is worthwhile to try to improve them, and, as above, encourage more use of public domain instruments) but obviously these licenses are adequate to facilitate vibrant commons projects (essentially all well known free/open source software, except for SQLite and djbware, which use public domain dedications), and it is the actual commons that needs to be favored, not some idealized zero friction symmetry between patent and copyright.

The historical reason to say “public domain” instead of “open source license” is possible legal precedent: back when software was unpatentable, it was also uncopyrightable. An awful lot of public domain software used to exist, and when people added copyrights to it, they opened it to patents as well. Software that _isn’t_ copyrighted, historically, also wasn’t patented. If somebody tries to enforce patents against public domain software, we can make a clear distinction and ask a judge to opine.

4) I’m not a lawyer, but I’d bet heavily against us winning. Happy to be wrong.

5) I’ve already mentioned size of the constituency for (2) and quantity of (3) free/open source software relative to only public domain software, but these bear repeating in the form of size of benefit. Protecting all free/open source software from patents would immediately benefit millions of free/open source software developers and users, and solve big problems for free/open source software and standards. There would be essentially no immediate benefit from only protecting public domain software from patents. Long term it would encourage more public domain software. To make that extremely lopsided trade off one has to believe that free/open source licenses are really, really awful relative to the public domain. I can understand that belief emotionally, but don’t think what evidence we have about success of various projects bears the belief out. Rather, the specific conditions (including none) just aren’t all that important so long as a minimum of permissions are granted. Exclusive public domain advocates may hate licenses, but licenses just don’t matter that much!

As the title of this post implies, free/open source software (inclusive of public domain software) is not the only commons threatened by patents that ought be favored through blanket protection from patents. Defining some of these (e.g., for seeds, 3D printing, general purpose robotics, and synthetic biology?) will be harder, in part because there may be no “well understood term in the trade” such as “open source”, but this is a much smaller hurdle (indeed, a sub-sub-task of) than organizing the relevant constituencies and making the case to the public and policymakers that favoring commons is indeed good policy.

Hazard Records 015

Tuesday, March 25th, 2014

Hazard Records 002 cover with no copyright notice

Barcelona-based avant/improv/appropriation/noise CD-R and now netlabel Hazard Records celebrates its 15th anniversary today (March 25). All of their releases are dedicated to the public domain (recent ones using CC0; for the trivia-oriented, note their pre-CC “no rights reserved” in the cover image above). I’ve been a dedicated listener since not long after they started uploading to the Internet Archive in 2004, 76 albums as of now, with one more each of the next four weeks coming in celebration of the anniversary. My top 4 easy listening recommendations…

Anton Ignorant – S/S Magick For Abused Speakers [HR017] (meditative noise)

Breuss Arrizabalaga Quintet – Nfamoudou-Boudougou [HR038] (free jazz)

Joan Bagés i Rubí – Miscel.lània Sonora [HR053] (avant miscellany)

XMARX – Unhazardous Songs [HR060] (rock ‘n’ ‘ropriation)

Unfortunately many Hazard Records albums on the Internet Archive don’t have embedded artist/album/title metadata in the ogg/mp3/flac downloads; this being one of the main motivations behind my wishlist for that site. But nobody downloads anymore and the Internet Archive has a passable (for now, if you’re not totally expecting uninterrupted play across pages that newer sites support) embedded player, used in this post and on the site. Listen, enjoy, and share…links.

Bonus recommendation:

Musica Veneno – Whole Lotta Love Story [HR015] (intra-label appropriation)

Happy 15 Hazardous years! I’m looking forward to the next 80 records.

RDFa initial context & one dc:

Tuesday, February 4th, 2014

One of the nice things to come out of RDFa 1.1 is its initial context — a list of vocabularies with prefixes which may be used without having to define locally. In other words, just write, e.g., property="dc:title" without having to first write prefix="dc: http://purl.org/dc/terms/".

In addition to making RDFa a lot less painful to use, the list is a good starting place for figuring out what vocabularies to use (if you must), perhaps even for non-RDFa applications — the list is machine-readable of course; I was reminded to write this post when giving feedback on a friend’s proposal to use prefix:property headers in a CSV file for a custom application, and by a recent announcement of the addition of three new predefined prefixes.

Survey data such as Linked Open Vocabularies can also help figure out what to use. Unfortunately LOV and the RDFa 1.1 initial context don’t agree 100% on prefix naming, and neither provides much in the way of guidance. I think there’s room for a highly opinionated and regularly updated guide to what vocabularies to use. I’m no expert, it probably already exists — please inform me!

dc:

The first thing I’d put in such an opinionated guide is to start one’s vocabulary search with Dublin Core. Trivial, right? But there is an under-documented subtlety which I find myself pointing out when a friend runs something like the aforementioned by me — DC means DC Terms. While it’s obvious that DC Terms is a superset of DC Elements, it’s harder to find evidence that using the former is best practice for new applications, and that the latter is not still the canonical vocabulary to start with. What I’ve gathered on this follows. I realize that the URIs for individual properties and classes, the prefixes used to abbreviate those URIs, and the documents which define (in English and RDF) properties and classes are distinct but interdependent. Prefixes are surely the most trivial and uninteresting, but for most people I imagine they’re important signals and documentation, thus I go on about them…

Namespace Policy for the Dublin Core Metadata Initiative (DCMI) (emphasis added):

The DCMI namespace URI for the collection of legacy properties that make up the Dublin Core Metadata Element Set, Version 1.1 [DCMES] is: http://purl.org/dc/elements/1.1/

Dublin Core Metadata Element Set, Version 1.1 (emphasis added):

Since 1998, when these fifteen elements entered into a standardization track, notions of best practice in the Semantic Web have evolved to include the assignment of formal domains and ranges in addition to definitions in natural language. Domains and ranges specify what kind of described resources and value resources are associated with a given property. Domains and ranges express the meanings implicit in natural-language definitions in an explicit form that is usable for the automatic processing of logical inferences. When a given property is encountered, an inferencing application may use information about the domains and ranges assigned to a property in order to make inferences about the resources described thereby.

Since January 2008, therefore, DCMI includes formal domains and ranges in the definitions of its properties. So as not to affect the conformance of existing implementations of “simple Dublin Core” in RDF, domains and ranges have not been specified for the fifteen properties of the dc: namespace (http://purl.org/dc/elements/1.1/). Rather, fifteen new properties with “names” identical to those of the Dublin Core Metadata Element Set Version 1.1 have been created in the dcterms: namespace (http://purl.org/dc/terms/). These fifteen new properties have been defined as subproperties of the corresponding properties of DCMES Version 1.1 and assigned domains and ranges as specified in the more comprehensive document “DCMI Metadata Terms” [DCTERMS].

Implementers may freely choose to use these fifteen properties either in their legacy dc: variant (e.g., http://purl.org/dc/elements/1.1/creator) or in the dcterms: variant (e.g., http://purl.org/dc/terms/creator) depending on application requirements. The RDF schemas of the DCMI namespaces describe the subproperty relation of dcterms:creator to dc:creator for use by Semantic Web-aware applications. Over time, however, implementers are encouraged to use the semantically more precise dcterms: properties, as they more fully follow emerging notions of best practice for machine-processable metadata.

The first two paragraphs explain why a new vocabulary was minted (so that the more precise definitions of properties already in DC Elements do not change the behavior of existing implementations; had only new terms and classes been added, maybe they could have been added to the DC Elements vocabulary, but maybe this is ahistoric, as many of the additional “qualified” DC Terms existed since 2000). The third paragraph explains that DC Terms should be used for new applications. Unfortunately the text informally (the prefixes aren’t used anywhere) notes the prefixes dc: and dcterms:, which I’ve found is not helpful in getting people to focus only on DC Terms.

Expressing Dublin Core metadata using the Resource Description Framework also notes the dc: and dcterms: prefixes for use in the document’s examples (which don’t ever actually use dc:).

Some of these documents have been updated slightly, but I believe their current versions are little changed from about 2008, a year after the proposal of the DC Terms refinements.

How to use DCMI Metadata as linked data uses the dc: and dcterms: prefixes and is clear about the ranges of properties of each: there is no incorrect usage of, e.g., purl.org/dc/elements/1.1/creator because it has no defined range nor domain, while purl.org/dc/terms/creator must be a non-literal, a purl.org/dc/terms/Agent. Perhaps this makes DC Terms seem scarier and partially explains the persistence of DC Elements. More likely I’d guess few know about the difference and lots of use of the DC Terms with non-literal ranges are used with literals in the wild (I might be guilty on occasion).

FAQ/DC and DCTERMS Namespaces:

It is not incorrect to continue using dc:subject and dc:title — alot of Semantic Web data still does — and since the range of those properties is unspecified, it is not actually incorrect to use (for example) dc:subject with a literal value or dc:title with a non-literal value. However, good Semantic Web practice is to use properties consistently in accordance with formal ranges, so implementers are encouraged to use the more precisely defined dcterms: properties.
Update, December 2011: It is worth noting that the Schema.org initiative is taking a pragmatic approach towards the formal ranges of their properties:

We also expect that often, where we expect a property value of type Person, Place, Organization or some other subClassOf Thing, we will get a text string. In the spirit of “some data is better than none”, we will accept this markup and do the best we can.

What constitutes “best practice” in this area is bound to evolve with implementation experience over time.

There you have people supplying literals for properties expecting non-literals. Schema.org RDF mappings do not formally condone this pragmatic approach, otherwise you’d see the likes of (addition in bold):

schema:creator a rdf:Property;
    rdfs:label "Creator"@en;
    rdfs:comment "The creator/author of this CreativeWork or UserComments. This is the same as the Author property for CreativeWork."@en;
    rdfs:domain [ a owl:Class; owl:unionOf (schema:UserComments schema:CreativeWork) ];
    rdfs:range [ a owl:Class; owl:unionOf (schema:Organization schema:Person xsd:string) ];
    rdfs:isDefinedBy ;
    rdfs:isDefinedBy ;

Also from 2011, a discussion of what prefixes to use in the RDFa initial context. Decision (Ivan Herman):

For the records: after having also discussed on yesterday’s telecom, I have made the changes on the profile files yesterday evening. The prefix set in the profile for http://purl.org/dc/terms/ is set to ‘dc’.

Read the expert input of Dan Brickley, Mikael Nilsson, and Thomas Baker. The initial context defines both dc: and dcterms: as prefixes for DC Terms, relegating DC Elements to dc11::

dc http://purl.org/dc/terms/ Dublin Core Metadata Terms DCMI Metadata Terms
dcterms http://purl.org/dc/terms/ Dublin Core Metadata Terms DCMI Metadata Terms
dc11 http://purl.org/dc/elements/1.1/ Dublin Core Metadata Element Set, Version 1.1 Dublin Core Metadata Element Set, Version 1.1

I found the above discussion on LOV’s entries for DC Terms and DC Elements, which use dcterms: and dce: prefixes respectively:

(2013-03-07) Bernard Vatant: Prefix restored to dcterms

(2013-06-17) Bernard Vatant: Although “dc” is often used as the prefix for this vocabulary, it’s also sometimes used for DC terms, so we preferred to use the less ambiguous “dce” and “dcterms” in LOV. See usage at http://prefix.cc/dc, http://prefix.cc/dce, http://prefix.cc/dcterms, and more discussion at http://bit.ly/uPuUTT.

I think the discussion instead supports using dc: and dc11: (because that’s what the RDFa initial context uses) instead. LOV doesn’t have a public source repository or issue tracker currently, but I understand it eventually will.

Now I have this grab-bag blog post to send to friends who propose using DC Elements. Please correct me if I’m wrong, and especially if a more concise (on this topic) and credible document exists, so I can send that instead; perhaps something like an opinionated guide to metadata mentioned way above.

Another topic such a guide might cover, perhaps as a coda, would be what to do if you really need to develop a new vocabulary. One thing is you really need to ask for help. The W3C now provides some infrastructure for doing this. Or, some qualified dissent from a hugely entertaining blogger called Brinxmat.

Some readers of my blog who have bizarrely read through this post, or skipped to the end, might enjoy Brinxmat’s Attribution licences for data and why you shouldn’t use them (another future issue report for LOV, which uses CC-BY?); I wrote a couple posts in the same blogversation; also a relevant upgrade exhortation.

Public domain wins copyright week!

Sunday, January 19th, 2014

public domain wins copyright weekEFF coordinated a six day copyright week, with suggested readings and actions in support of six principles, below with readings + actions count:

  • Transparency: 10 + 1 = 11
  • Building and Defending a Robust Public Domain: 16 + 0 = 16
  • Open Access: 9 + 2 = 11
  • You Bought it, You Own It: 8 + 3 = 11
  • Fair Use Rights: 14 + 1 = 15
  • Getting Copyright Right: 7 + 1 = 8

I couldn’t help but notice that the public domain “wins” by the metric of total readings + actions, perhaps indicative of relative enthusiasm and evaluation of importance by the communities EFF reaches. Good.

The apparent “loser” is getting copyright right, which I’ll also take undue satisfaction in: it’s an impoverished objective, relative to expanding and protecting intellectual freedom. Alternatively, public domain maximalism (second alternative, corresponding to the runner-up: fair use maximalism) is getting copyright right. But I acknowledge advocating “getting copyright right” (and the entire exercise of copyright week) is a fine thing to do given constraints, and its “loss” is likely due to being a more difficult writing assignment, and falling on the last day.

The latent “loser” though is the role of commons initiatives in changing the knowledge economy, thus the range of policies which can be imagined, and the resources available to support various policies. Some initiatives are mentioned, but almost exclusively as victims of costs imposed by bad policy. Daniel Mietchen’s Wikimedia and Open Access might be the reading closest to what I’d like to see a whole day dedicated to (on the seventh day of copyright week, commoners made their own freedom). Though starting with copyright-imposed costs to the project, Mietchen proceeds to describe collaboration among Wikimedians and the Open Access movement, and ends with (implied) competition:

wider exposure of Open Access materials through Wikimedia platforms may perhaps serve as an incentive for researchers to reconsider whether putting their articles behind access and reuse barriers is an appropriate approach to publishing them.

Related, because it is the domain of the most robust commons initiatives, it is too bad software was not the primary topic of several copyright week readings and actions. But even ignoring the seventh day angle, it is incredibly short-sighted to treat software as a separate category, whether for purposes of study or policy (e.g., copyright). All of the traditional subjects of copyright are now largely made with and mediated by software, but that’s just the beginning. Soon enough, they’ll all be software, or be obsolete. (In hindsight I should have noticed copyright week approaching, and urged various free/open source software initiatives to participate, and explain their policy relevance and potency.)

Back to cheering, I highly recommend at least skimming a few of the readings in each category, linked on the EFF copyright week page. Unless you follow knowledge policy writ large really closely, you’re almost certain to learn something new about policy battles that will play a large role in shaping the future of society.

To make up for the lack of copyright week “actions” recommended for building and defending a robust public domain: sign the public domain manifesto, upgrade your work to the public domain, and enjoy and share the greatest public domain film to date.

Happy GNU Year & Public Domain Day

Wednesday, January 1st, 2014
happy gnu year and public domain day

Any previous combinations? Reminded of GNU year greetings by Laurel Russwurm and Public Domain Day by the Public Domain Review and Center for the Study of the Public Domain.

My previous Public Domain Day posts:

Echoing the 2011 entry, I recently urged all to upgrade to CC0 (a public domain dedication and license). Also, January 1 is a good date to reiterate:

Unless stated otherwise, everything by me, Mike Linksvayer, published anywhere, is hereby placed in the public domain.

Join me. More importantly, unless you’re prodigious, demand that at the very least all government material go directly into the public domain.

The bottom part of the image is from The Gnoo (1804) by Samuel Daniell (1775-1811). The top is from an illustration (1883) by Louis-Maurice Boutet de Monvel (1851-1913). Latter selected because it is newly unambiguously in the public domain worldwide, including Mexico, which has life + 100 years of restriction. It would not be shocking to see this term ratchet worldwide in the next years.

Bonus links:

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:

@COPYLEFT; ALL WRONGS RESERVED

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

[Semi]Commons Coordinations & Copyright Choices 4.0

Monday, December 9th, 2013

CC0 is superior to any of the Creative Commons (CC) 4.0 licenses, because CC0 represents a superior policy (public domain). But if you’re unable or unwilling to upgrade to CC0, the CC 4.0 licenses are a great improvement over the 3.0 licenses. The people who did the work, led by Diane Peters (who also led CC0), many CC affiliates (several of whom were also crucial in making CC0 a success), and Sarah Pearson and Kat Walsh, deserve much praise. Bravo!

Below read my idiosyncratic take on issues addressed and not addressed in the 4.0 licenses. If that sounds insufferable, but you want to know about details of the 4.0 licenses, skip to the excellent version 4 and license versions pages on the CC wiki. I don’t bother linking to sections of those pages pertinent to issues below, but if you want detailed background beyond my idiosyncratic take on each issue, it can be found there.

Any criticism I have of the 4.0 licenses concerns policy choices and is not a criticism of the work done or people involved, other than myself. I fully understand that the feasible choices were and are highly constrained by previous choices and conditions, including previous versions of the CC licenses, CC’s organizational history, users of CC licenses, and the overall states of knowledge commons and info regulation and CC’s various positions within these. I always want CC and other “open” organizations to take as pro-commons of a stance as possible, and generally judge what is possible to be further than that of the conventional wisdom of people who pay any attention to this scene. Sometimes I advocated for more substantial policy changes in the 4.0 licenses, though just as often I deemed such advocacy futile. At this point I should explain that I worked for CC until just after the 4.0 licenses process started, and have consulted a bit on 4.0 licenses issues since then as a “fellow”. Not many people were in a better position to influence the 4.0 licenses, so any criticisms I have are due to my failure to convince, or perhaps incorrect decision to not try in some cases. As I’ve always noted on this blog, I don’t represent any organization here.

Desiderata

Pro-commons? As opposed to what? The title of the CC blog post announcing the formal beginning of work on the new licenses:

Copyright Experts Discuss CC License Version 4.0 at the Global Summit

My personal blog post:

Commons experts to develop version 4.0 of the CC licenses

The expertise that CC and similar organizations ought to bring to the world is commons coordination. There are many copyright experts in the world, and understanding public copyright licenses, and drafting more, are no great intellectual challenges. The copyright expertise needed to do so ought be purely instrumental, serving the purpose of commons coordination. Or so I think.

Throughout CC’s existence, it has presented itself, and been perceived as, to varying extents, an organization which provides tools for copyright holders to exercise their copyrights, and an organization which provides tools for building a commons. (What it does beyond providing tools adds another dimension, not unrelated to “copyright choice” vs. “commons coordination”; there’s some discussion of these issues in a video included in my personal post above.)

I won’t explain in this post, but I think the trend through most of CC’s history has been very slow movement in the “commons coordination” direction, and the explicit objectives of the 4.0 versioning process fit that crawl.

“Commons coordination” does not directly imply the usual free/open vs. proprietary/closed dichotomy. I think it does mostly fall out that way, in small part due to “license interoperability” practicalities, but probably mostly because I think the ideal universal copyregulation policy corresponds to the non-discriminatory commons that “free/open” terms and communities carve out on a small scale, including the pro-sharing policy that copyleft prototypes, and excluding any role for knowledge enclosure, monopoly, property, etc. But it is certainly possible, indeed usual, to advocate for a mixed regime (I enjoy the relatively new term “semicommons”, but if you wish to see it everywhere, try every non-demagogic call for “balance”), in which case [semi]commons tools reserving substantial exclusivity (e.g., “commercial use”) make perfect sense for [semi]commons coordination.

Continuing to ignore the usual [non-]open dichotomy, I think there still are a number of broad criteria for would-be stewards of any new commons coordinating license (and make no mistake, a new version of a license is a new license; CC introduced 6 new licenses with 4.0) to consider carefully, and which inform my commentary below:

  • Differentiation: does the new license implement some policy not currently available in existing licenses, or at least offer a great improvement in implementation (not to provide excuses for new licenses, but the legal text is just one part of implementation; also consider branding/positioning, understandability, and stewardship) of policy already available?
  • Permissions: does the new license grant all permissions needed to realize its policy objective?
  • Regulation: how does the license’s policy objective model regulation that ought be adopted at a wider scale, e.g., how does it align with usual “user rights” and “copyright reform” proposals?
  • Interoperability: is the new license maximally compatible with existing licenses, given the constraints of its policy objectives, and indeed, to the expense of its immediate policy objectives, given that incompatibility, non-interoperability, and proliferation must fragment and diminish the value of commons?
  • Cross-domain impact: how does the license impact license interoperability and knowledge sharing across fields/domains/communities (e.g., software, data, hardware, “content”, research, government, education, culture…)? Does it further silo existing domains, a tragedy given the paucity of knowledge about governing commons in the world, or facilitate sharing and collaboration across domains?

Several of these are merely a matter of good product design and targeting, and would also apply to an organization that really had a primary goal of offering copyright holders additional choices the organization deems are under-provided. I suspect there is plenty of room for innovation in “copyright choice” tools, but I won’t say more in this post, as such have little to do with commons, and whatever CC’s history of copyright choice rhetoric and offering a gaggle of choices, creating such tools is distant from its immediate expertise (other than just knowing lots about copyright) and light years from much of its extended community.

Why bother?

Apart from amusing myself and a few others, why this writeup? The CC 4.0 licenses won’t change, and hopefully there won’t be CC 4.1 or 4.5 or 5.0 licenses for many years. Longevity was an explicit goal for 4.0 (cf. 1.0: 17 months, 2.0: 12 months; 2.5: 20 months; 3.0: 81 months). Still, some of the issues covered here may be interesting to people choosing to use one of the CC 4.0 licenses, and people creating other licenses. Although nobody wants more licenses, often called license proliferation, as an end in itself, many more licenses is the long term trend, of which the entire history of CC is just a part. Further, more licenses can be a good, to the extent they are significantly different from and better than, and as compatible as possible with, existing licenses.

To be totally clear: many new licenses will be created and used over the next 10 years, intended for various domains. I would hope, some for all domains. Proliferators, take heed!

Development tools

A 4.0 wiki page and a bunch of pages under that were used to lay out objectives, issues and options for resolution, and link to drafts. Public discussion was on the cc-licenses list, with tangential debate pushed to cc-community. Drafts and changes from previous drafts were published as redlined word processor files. This all seems to have worked fairly well. I’d prefer drafts as plain text files in a git repository, and an issue tracker, in addition to a mailing list. But that’s a substantially different workflow, and word processor documents with track changes and inline comments do have advantages, not limited to lawyers being familiar with those tools.

100% wiki would also work, with different tradeoffs. In the future additional tools around source repositories, or wikis, or wikis in source repositories, will finally displace word processor documents, but the tools aren’t there yet. Or in the bad future, all licenses will be drafted in word processors in the cloud.

(If it seems that I’m leaving a a lot out, e.g., methodology for gathering requirements and feedback, in-person and teleconferences, etc., I merely have nothing remotely interesting to say, and used “tools” rather than “process” to narrow scope intentionally.)

Internationalization

The 4.0 licenses were drafted to be jurisdiction neutral, and there will be official, equivalent, verbatim language translations of the licenses (the same as CC0, though I don’t think any translations have been made final yet). Legal “porting” to individual jurisdictions is not completely ruled out, but I hope there will be none. This is a wholly positive outcome, and probably the most impactful change for CC itself (already playing out over the past few years, e.g., in terms of scope and composition of CC affiliates), though it is of small direct consequence to most users.

Now, will other license drafters and would-be drafters follow CC’s lead and stop with the vanity jurisdiction license proliferation already?

Databases

At least the EU, Mexico, Russia, and South Korea have created “database rights” (there have been attempts in other jurisdictions), copyright-like mechanisms for entities that assemble databases to persecute others who would extract or copy substantial portions of said databases. Stupid policies that should be abolished, copyright-like indeed.

Except for CC0 and some minor and inconsistent exceptions (certain within-EU jurisdiction “port” versions), CC licenses prior to 4.0 have not “covered” database rights. This means, modulo any implied license which may or may not be interpreted as existing, that a prior-to-4.0 (e.g., CC-BY-3.0) licensee using a database subject to database restrictions (when this occurs is a complicated question) would have permission granted by the licensor around copyright restrictions, but not around database restrictions. This is a pretty big fail, considering that the first job of a public license is to grant adequate permissions. Actual responses to this problem:

  • Tell all database publishers to use CC0. I like this, because everyone should just use CC0. But, it is an inadequate response, as many will continue to use less permissive terms, often in the form of inadequate or incompatible licenses.
  • Only waive or license database restrictions in “ports” of licenses to jurisdictions in which database restrictions exist. This is wholly inadequate, as in the CC scheme, porting involves tailoring the legal language of a license to a jurisdiction, but there’s no guarantee a licensor or licensee in such jurisdictions will be releasing or using databases under one of these ports, and in fact that’s often not the case.
  • Have all licenses waive database restrictions. This sounds attractive, but is mostly confusing — it’s very hard to discern when only database and not copyright restrictions apply, such that a licensee could ignore a license’s conditions — and like “tell database publishers to use CC0″ would just lead many to use different licenses that do purport to conditionally license database rights.
  • Have all licenses grant permissions around database restrictions, under whatever conditions are present in the license, just like copyright.

I think the last is the right approach, and it’s the one taken with the CC 4.0 licenses, as well as by other licenses which would not exist but for CC 3.0 licenses not taking this approach. I’m even more pleased with their generality, because other copyright-like restrictions are to be expected (emphasis added):

Copyright and Similar Rights means copyright and/or similar rights closely related to copyright including, without limitation, performance, broadcast, sound recording, and Sui Generis Database Rights, without regard to how the rights are labeled or categorized. For purposes of this Public License, the rights specified in Section 2(b)(1)-(2) are not Copyright and Similar Rights.

The exclusions of 2(b)(1)-(2) are a mixed bag; see moral and personality rights, and patents below.

CC0 also includes a definition with some generality:

Copyright and Related Rights include, but are not limited to, the following:

  1. the right to reproduce, adapt, distribute, perform,
    display, communicate, and translate a Work;
  2. moral rights retained by the original author(s) and/or
    performer(s);
  3. publicity and privacy rights pertaining to a person’s
    image or likeness depicted in a Work;
  4. rights protecting against unfair competition in regards
    to a Work, subject to the limitations in paragraph 4(a),
    below;
  5. rights protecting the extraction, dissemination, use and
    reuse of data in a Work;
  6. database rights (such as those arising under Directive
    96/9/EC of the European Parliament and of the Council of 11
    March 1996 on the legal protection of databases, and under
    any national implementation thereof, including any amended
    or successor version of such directive); and
  7. other similar, equivalent or corresponding rights
    throughout the world based on applicable law or treaty, and
    any national implementations thereof.

As does GPLv3:

“Copyright” also means copyright-like laws that apply to other kinds of works, such as semiconductor masks.

Do CC0 and CC 4.0 licenses cover semiconductor mask restrictions (best not to use for this purpose anyway, see patents)? Does GPLv3 cover database restrictions? I’d hope the answer is yes in each case, and if the answer is no or ambiguous, future licenses further improve on the generality of restrictions around which permissions are granted.

There is one risk in licensing everything possible, and culturally it seems, specifically in licensing database rights — the impression that licensee which do so ‘create obligations’ related to those rights. I find this an odd way to think of a conditional permission as the creation of an obligation, when the user’s situation without said permission is unambiguously worse, i.e., no permission. Further, this impression is a problem for non-maximally-permissive licenses around copyright, not only database or other copyright-like rights.

In my opinion the best a public license can do is to grant permissions (conditionally, if not a maximally permissive license) around restrictions with as much generality as possible, and expressly state that a license is not needed (and therefore conditions to not apply) if a user can ignore underlying restrictions for some other reason. Can the approach of CC version 4.0 licenses to the latter be improved?

For the avoidance of doubt, where Exceptions and Limitations apply to Your use, this Public License does not apply, and You do not need to comply with its terms and conditions.

These are all trivialities for license nerds. For publishers and users of databases: Data is free. Free the data!

Moral and personality rights

CC 4.0 licenses address them well:

Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.

To understand just how well, CC 3.0 licenses say:

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author’s honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.

Patents and trademark

Prior versions were silent, CC 4.0 licenses state:

Patent and trademark rights are not licensed under this Public License.

Perhaps some potential licensor will be reassured, but I consider this unnecessary and slightly harmful, replicating the main deficiency of CC0. The explicit exclusion makes it harder to see an implied license. This is especially troublesome when CC licenses are used in fields in which patents can serve as a barrier. Software is one, for which CC has long disrecommended use of CC licenses largely because software is already well-covered by licenses with which CC licenses are mostly incompatible with; the explicit patent exclusion in the CC 4.0 licenses makes them even less suitable. Hardware design is another such field, but one with fragmented licensing, including use of CC licenses. CC should now explicitly disrecommend using CC licenses for hardware designs and declare CC-BY-SA-4.0 one-way compatible with GPLv3+ so that projects using one of the CC-BY-SA licenses for hardware designs have a clear path to a more appropriate license.

Patents of course can be licensed separately, and as I pointed out before regarding CC0, there could be curious arrangements for projects using such licenses with patent exclusions, such as only accepting contributions from Defensive Patent License users. But the better route for “open hardware” projects and the like to take advantage of this complementarity is to do both, that is use a copyright and related rights license that includes a patent peace clause, and join the DPL club.

DRM

CC 4.0 licenses:

The Licensor waives and/or agrees not to assert any right or authority to forbid You from making technical modifications necessary to exercise the Licensed Rights, including technical modifications necessary to circumvent Effective Technological Measures.

This is a nice addition, which had been previously suggested for CC 3.0 licenses and rejected — the concept copied from GPLv3 drafts at the time. I would have preferred to also remove the limited DRM prohibition in the CC licenses.

Attribution

The CC 4.0 licenses slightly streamline and clarify the substance of the attribution requirement, all to the good. The most important bit, itself only a slight streamlining and clarification of similar in previous versions:

You may satisfy the conditions in Section 3(a)(1) in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information.

This pulls in the wild use from near zero to-the-letter compliance to fairly high.

I’m not fond of the requirement to remove attribution information if requested by the licensor, especially accurate information. I don’t know whether a licensor has ever made such a request, but that makes the clause only pointless rather than harmful. Not quite though, as it does make for a talking point.

NonCommercial

not primarily intended for or directed towards commercial advantage or private monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

Not intended to be a substantive change, but I’ll take it. I’d have preferred a probably more significantly narrowed definition and a re-branding so as to increase the range of and differentiation among the licenses that CC stewards. But at the beginning of the 4.0 licenses process, I expected no progress, so am not disappointed. Branding and other positioning changes could come post-launch, if anyone is so inclined.

I think the biggest failure of the range of licenses with an NC term (and there are many preceding CC) is not confusion and pollution of commons, very roughly the complaints of people who would like NC to have a more predictable meaning and those who think NC offers inadequate permissions, respectively, but lack of valuable use. Licenses with the NC term are certainly used for hundreds of millions of photos and web pages, and some (hundreds of?) thousands of songs, videos, and books, but few where either the licensor or the public gains significant value above what would have been achieved if the licensor had simply offered gratis access (i.e., put stuff on the web, which is incredibly valuable even with no permissions granted). As far as I know, NC licenses haven’t played a significant role in enabling (again, relative to gratis access) any disruptive product or policy, and their use by widely recognized artists and brands is negligible (cf. CC-BY-SA, which Wikipedia and other mass collaboration projects rely on to exist, and CC-BY and CC0, which are part of disruptive policy mandates).

CC is understandably somewhat stuck between free/open norms, which make licenses with the NC an embarrassment, and their numerically large but low value uses. A license steward or would-be steward that really believed a semicommons license regime could do much more would try to break out of this rut by doing a complete rethink of the product (or that part of the product line), probably resulting in something much more different from the current NC implementation than the mere definitional narrowing and rebranding that I started out preferring. This could be related to my commentary on innovation in “copyright choice” tools above; whether the two are really the same thing would be a subject for inquiry.

NoDerivatives

If there were licenses that should not have been brought to version 4.0, at least not under the CC brand, it would have been CC-BY-NC-ND and CC-BY-ND.

Instead, an express permission to make derivatives so long as they are not shared was added. This change makes so-called text/content/data mining of any work under any of the CC version 4.0 licenses unambiguously permitted, and makes ND stick out a tiny bit less as an aberration from the CC license suite modeling some moderate copyright reform baseline.

There are some costs to this approach: surprise that a “no derivatives” license permits derivatives, slight reduction in scope and differentiation among licenses that CC stewards, giving credence to ND licenses as acceptable for scholarship, and abetting the impression that text/content/data mining requires permission at all. The last is most worrisome, but (as with similar worries around licensing databases) can be turned into a positive to the extent CC and everyone knowledgeable emphasizes that you ought not and probably don’t need a license; we’re just making sure you have the freedoms around CC licensed works that you ought to have anyway, in case the info regulation regime gets even worse — but please, mine away.

ShareAlike

This is the most improved named (BY/NC/ND/SA) elements in CC 4.0 licenses, and the work is not done yet. But first, I wish it had been improved even more, by making more uses unambiguously “trigger” the SA provision. This has been done once, starting in 2.0:

For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered a Derivative Work for the purpose of this License.

The obvious next expansion would have been use of images (still or moving) in contextual relation to other material, eg illustrations used in a text. Without this expansion, CC-BY-SA and CC-BY-NC-SA are essentially identical to CC-BY and CC-BY-NC respectively for the vast majority of actual “reuse” instances. Such an expansion would have substantially increased the range of and differentiation among licenses that CC stewards. The main problem with such an expansion (apart from specifying it exactly) would be increasing the cost of incompatibility, where texts and images use different licenses. This problem would be mitigated by increasing compatibility among copyleft licenses (below), or could be eliminated by broadening the SA licensing requirement for uses triggered by expansion, eg any terms granting at least equivalent permissions, such that a CC-BY-SA illustration could still be used in a text licensed under CC-BY or CC0. Such an expansion did not make the cut, but I think together with aforementioned broadening of licensing requirements, such a modulation (neither strictly “stronger” nor “weaker”) would make for an interesting and heretofore unimplemented approach to copyleft, in some future license.

Apart from a subtle improvement that brings SA closer to a full “or later versions” license, and reflects usual practice and understanding (incidentally, “no sublicensing” in non-SA licenses remains pointless, is not to be found in most non-CC permissive licenses, and should not be replicated), the big improvements in CC 4.0 licenses with the SA element are the addition of the potential for one-way compatibility to CC-BY-SA, adding the same compatibility mechanism to CC-BY-NC-SA, and discussions with stewards of potentially compatible licenses which make the realization of compatibility more likely. (I would have included a variation on the more complex but in my view elegant and politically advisable mechanism introduced in MPL 2.0, which allows for continued use under the donor compatible license as long as possible. Nobody demanded such, so not adding the complexity was perhaps a good thing.)

I hope that in 2014 CC-BY-SA-4.0 will be declared bilaterally compatible with the Free Art License 1.3, or if a new FAL version is required, it is being worked on, with achieving bilateral compatibility as a hard requirement, and more importantly, that CC-BY-SA-4.0 is declared one-way compatible (as a donor) with GPLv3+. An immediate step toward those ends will be finalizing an additional statement of intent regarding the stewardship of licenses with the ShareAlike element.

Though I’ll be surprised if any license appears as a candidate for compatibility with CC-BY-NC-SA-4.0, adding the mechanism to that license is a good thing: as a matter of general license stewardship, reducing the barriers to someone else creating a better NC license (see above), and keeping “porting” completely outside the 4.0 license texts (hopefully there will be no porting, but if there is any, compatibility with the international versions in licenses with the SA element would be exclusively via the compatibility mechanism used for any potentially compatible license).

Tech

All license clauses have id attributes, allowing direct linking to a particular clause. These direct links are used for references within the licenses. These are big usability improvements.

I would have liked to see an expansive “tech” (including to some extent design) effort synchronized with the 4.0 licenses, from the practical (e.g., a canonical format for license texts, from which HTML, plain text, and others are generated; that may be HTML, but the current license HTML is inadequate for the task) to the impractical (except for increasing CC’s reputation, e.g., investigating whether any semantic annotation and structure, preferably building on existing research, would be useful, in theory, for the license texts, and possibly even a practical aid to translation), to testing further upgrades to the ‘legal user interface’ constituted by the license texts and “deed” summaries (e.g., combining these), to just bringing various CC tooling and documentation up to date with RDFa 1.1 Lite. But, some of these things could be done post-launch if anyone is so inclined, and my understanding is that CC has only a single technology person on staff, dedicated to creating other products, and most importantly, the ability to directly link to any license clause probably has more practical benefits than anything on my wishlist.

Readability

One of the best things about the CC 4.0 licenses is their increased understandability. This is corroborated by crude automated readability metrics below, but I suspect these do not adequately characterize the improvement, for they include three paragraphs of explanatory text not present in previous versions, probably don’t fully reflect the improvement of splitting hairball paragraphs into lists, and have no mechanism for accounting for how the improved usability of linking to individual clauses contributes to understandability.

CC-BY-NC-SA (the license with the most stuff in it, usually used as a drafting template for others) from version 1.0 through 4.0, including 4.0 drafts (lower numbers indicate better readability, except in the case of Flesch; Chars/(Flesch>=1) is my gross metric for how painful it is to read a document; see license automated readability metrics for an explanation):

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
39b2ef67be9e5b4e743e5269a31ad1691515eede CC-BY-NC-SA-1.0 10228 13.3 16.3 14.2 17.0 59.7 14.2 48.4 211
5800ac2d32e35ace035cdcae693423cd9ff5bb6f CC-BY-NC-SA-2.0 11927 13.3 16.2 14.7 17.1 60.0 14.4 47.0 253
e5f44c2df6b1391d1ddb6efb2db6f90670e4ae67 CC-BY-NC-SA-2.5 12013 13.1 16.0 14.6 16.9 59.6 14.2 47.7 251
a63b7e81e7b9e30df5d253aed1d2991af47992df CC-BY-NC-SA-3.0 17134 16.4 19.7 14.2 20.6 67.0 16.3 38.8 441
8b36c30ed0510d9ca9c69a2ef826b9fd52992474 by-nc-sa-4.0d1 12465 13.0 15.0 14.9 16.3 57.4 14.0 43.9 283
4a87c7af5cde7729e2e456ee0e8958f8632e3005 by-nc-sa-4.0d2 11583 13.1 14.8 14.2 16.8 56.2 14.4 44.7 259
bb6f239f7b39343d62440bff00de24da2b3d256f by-nc-sa-4.0d3 14422 14.1 15.8 15.1 18.2 61.0 15.4 38.6 373
cf5629ae38a745f4f9eca429f7b26af2e71eb109 by-nc-sa-4.0d4 14635 13.8 15.6 15.5 17.8 60.2 15.2 38.6 379
a5e1b9829fd287cbe255df71eb9a5aad7fb19dbc by-nc-sa-4.0d4v2 14808 14.0 15.8 15.5 18.0 60.6 15.2 38.1 388
887f9a5da675cf681421eab3ac6d61f82cf34971 CC-BY-NC-SA-4.0 14577 13.1 14.7 15.7 17.1 58.6 14.7 40.1 363

Versions 1.0 through 4.0 of each of the six CC licenses brought to version 4.0, and CC0:

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
74286ae0dfea38c489437bf659b209737945145c CC0-1.0 5116 16.2 19.5 15.0 19.5 66.3 15.6 36.8 139
c766cc6d5e63277e46a3d83c6254e3528082587b CC-BY-1.0 8867 12.6 15.5 14.1 16.4 57.8 13.8 51.3 172
bf23729bec8ffd0de4d319fb33395c595c5c762b CC-BY-2.0 9781 12.1 14.9 14.3 16.1 56.7 13.7 51.9 188
024bb6d37d0a17624cf532bd14fbd42e15c5a963 CC-BY-2.5 9867 11.9 14.7 14.2 15.8 56.3 13.6 52.6 187
20dc61b94cfe1f4ba5814b340095b4c3fa23e801 CC-BY-3.0 14956 16.1 19.4 14.1 20.4 66.1 16.2 40.0 373
00b29551deee9ced874ffb9d29379b92f1487045 CC-BY-4.0 13003 13.0 14.5 15.4 16.9 57.9 14.6 41.1 316
e0c4b13ec5f9b5702d2e8b88d98b803e07d65cf8 CC-BY-NC-1.0 9313 13.2 16.2 14.3 17.0 59.3 14.1 49.3 188
970421995789d2e8189bb12071ab838a3fcf2a1a CC-BY-NC-2.0 10635 13.1 16.1 14.6 17.2 59.5 14.4 48.1 221
08773bb9bc13959c6f00fd49fcc081d69bda2744 CC-BY-NC-2.5 10721 12.9 15.8 14.5 16.9 59.0 14.2 48.9 219
9639556280637272ace081949f2a95f9153c0461 CC-BY-NC-3.0 15732 16.5 19.9 14.1 20.8 67.2 16.4 38.7 406
afcbb9791897e1e2f949d9d56ba64164746e0828 CC-BY-NC-4.0 13520 13.2 14.8 15.6 17.2 58.6 14.8 39.8 339
9ab2a3818e6ccefbc6ffdd48df7ecaec25e32e41 CC-BY-NC-ND-1.0 8729 12.7 15.8 14.4 16.4 58.6 13.8 51.0 171
966c97357e3b529e9c8bb8166fbb871c5bc31211 CC-BY-NC-ND-2.0 10074 13.0 16.1 14.7 17.0 59.7 14.3 48.8 206
c659a0e3a5ee8eba94aec903abdef85af353f11f CC-BY-NC-ND-2.5 10176 12.8 15.9 14.6 16.8 59.2 14.2 49.3 206
ad4d3e6d1fb6f89bbd28a44e263a89430b575dfa CC-BY-NC-ND-3.0 14356 16.3 19.7 14.1 20.5 66.8 16.2 39.7 361
68960bdf512ff5219909f932b8a81fdb255b4642 CC-BY-NC-ND-4.0 13350 13.3 14.8 15.7 17.2 58.4 14.8 39.4 338
39b2ef67be9e5b4e743e5269a31ad1691515eede CC-BY-NC-SA-1.0 10228 13.3 16.3 14.2 17.0 59.7 14.2 48.4 211
5800ac2d32e35ace035cdcae693423cd9ff5bb6f CC-BY-NC-SA-2.0 11927 13.3 16.2 14.7 17.1 60.0 14.4 47.0 253
e5f44c2df6b1391d1ddb6efb2db6f90670e4ae67 CC-BY-NC-SA-2.5 12013 13.1 16.0 14.6 16.9 59.6 14.2 47.7 251
a63b7e81e7b9e30df5d253aed1d2991af47992df CC-BY-NC-SA-3.0 17134 16.4 19.7 14.2 20.6 67.0 16.3 38.8 441
887f9a5da675cf681421eab3ac6d61f82cf34971 CC-BY-NC-SA-4.0 14577 13.1 14.7 15.7 17.1 58.6 14.7 40.1 363
e4851120f7e75e55b82a2c007ed98ffc962f5fa9 CC-BY-ND-1.0 8280 12.3 15.5 14.3 16.1 57.9 13.6 52.4 158
f1aa9011714f0f91005b4c9eb839bdb2b4760bad CC-BY-ND-2.0 9228 11.9 14.9 14.5 15.8 56.9 13.5 52.7 175
5f665a8d7ac1b8fbf6b9af6fa5d53cecb05a1bd3 CC-BY-ND-2.5 9330 11.8 14.7 14.4 15.6 56.5 13.4 53.2 175
3fb39a1e46419e83c99e4c9b6731268cbd1591cd CC-BY-ND-3.0 13591 15.8 19.2 14.1 20.0 65.6 15.9 41.2 329
ac747a640273815cf3a431be0afe4ec5620493e3 CC-BY-ND-4.0 12830 13.0 14.4 15.4 16.9 57.6 14.6 40.7 315
dda55573a1a3a80d294b1bb9e1eeb3a6c722968c CC-BY-SA-1.0 9779 13.1 16.1 14.2 16.8 59.1 14.0 49.5 197
9cceb80d865e52462983a441904ef037cf3a4576 CC-BY-SA-2.0 11044 12.5 15.3 14.4 16.2 57.9 13.8 50.2 220
662ca9fce7fed61439fcbc27ca0d6db0885718d9 CC-BY-SA-2.5 11130 12.3 15.0 14.4 16.0 57.5 13.6 50.9 218
4a5bb64814336fb26a9e5d36f22896ce4d66f5e0 CC-BY-SA-3.0 17013 16.4 19.8 14.1 20.5 67.2 16.2 38.9 437
8632363dcc2c9fc44f582b14274259b3a35744b2 CC-BY-SA-4.0 14041 12.9 14.4 15.4 16.8 57.8 14.5 41.4 339

It’s good for automated readability metrics that from 3.0 to 4.0 CC-BY-SA is most improved (the relevant clause was a hairball paragraph; CC-BY-NC-SA should have improved less, as it gained the compatibility mechanism) and CC-BY-ND is least improved (it gained express permission for private adaptations).

Next

I leave a list of recommendations (many already mingled in or implied by above) to a future post. But really, just use CC0.

Upgrade to CC-BY(-(NC(-(ND|SA))?|ND|SA))?-4\.0

Monday, November 25th, 2013

Today Creative Commons released version 4.0 of six* of its licenses, with many improvements over version 3.0, after more than two years of work. I’ll write more about those details later. But you should skip right past 4.0 and upgrade to CC’s premier legal product, CC0. This is the case whether you’re looking to adopt a CC license for the first time, or to upgrade from version 1.0, 2.0, 2.1, 2.5, or 3.0.

Let’s review the named conditions present in some or all of the CC 4.0 licenses, and why unconditional CC0 is better.

Don’t forget unmitigated © in the basement.

Attribution (BY). Do not take part in the debasement of attribution, and more broadly, provenance, already useful to readers, communities of practice, and publishers, by making them seem mere objects of copyright license compliance. If attribution is useful, it will be provided. If not, robots will find out. Rarely does anyone comply with the exact legal requirements of the attribution term anyway, and as a licensor, you probably won’t provide the information needed by licensees to easily comply. Plus, the corresponding icon looks like a men’s bathroom sign.

NonCommercial (NC). Sounds nice, but nobody knows what it means. Perhaps this goes some way to explaining why NC licensed works are often used by for-profit entities, including with advertising, while NC licensed works are verboten for many community and non-profit projects, most prominently Wikipedia and other Wikimedia projects. (Because commercial entities know there is very low risk of being sued for non-compliance, and can manage risk, while community projects tend to draw and follow bright lines. Perhaps community projects ought to be able to manage risk, and that they can’t is a demonstration of their relative lack of institutional sophistication…but that’s another topic!)

NoDerivatives (ND). This term has no business being in the “Creative Commons” license suite, but sadly still is. If you don’t want to contribute to a creative commons, don’t. If you’d like to, but think copyright (through withholding permission to share adaptations, i.e., the ND term) will prevent people from misrepresenting you, you’re wrong, committing an act of hate toward free speech, and undermining the potential of voluntary license practice to align with and support an obvious baseline objective for copyright reform: noncommercial sharing and remix should always be legal.

ShareAlike (SA). Also sounds nice, and I am a frequent apologist and sometime advocate for the underlying idea, copyleft. But SA is a weak implementation of copyleft. It isn’t “triggered” by the most common use of CC-licensed material (contextual illustration, not full remix), and it has no regulatory condition not present in non-SA CC licenses (cf GPL, which requires sharing source for a work, and is usable for any work; if you care about copyleft, tell CC to finish making CC-BY-SA one-way compatible with GPL). And the SA implementation retains the costs of copyleft: blank stares of incomprehension, even from people who have worked in the “open” world for over a decade, and occasionally intense fear and dislike (the balance is a bit different in the software world, but this is my direct experience among non-software putatively open organizations and people); also, compatibility problems. It’s time to take the unsolicited advice often given to incumbents and others fearful of the internet: ‘obscurity is a greater threat than piracy’ — and apply it: ‘obscurity is a greater threat than proprietarization.’


Upgrade to CC0!

CC0 isn’t perfect, but it is by far the best tool provided by CC. I have zero insight into the future of the CC organization, but I hope it gives ample priority to the public domain, post-4.0 launch.

*CC-BY(-(NC(-(ND|SA))?|ND|SA))?-4\.0 is a regular expression matching all six licenses released today.

Hierarchy of mechanisms for limiting copyright and copyright-like barriers to use of Public Sector Information, or More or Less Universal Government License(s)

Sunday, November 24th, 2013

This sketch is in part motivated by a massive proliferation of copyright and copyright-like licenses for government/public sector information, e.g., sub- and sub-sub-national jurisdiction licenses and sector- and jurisdiction-specific licenses intended to combat license proliferation within a sector within a jurisdiction. Also by longstanding concern about coordination among entities working to limit barriers to use of PSI and knowledge commons governance generally.

Everything following concerns PSI only relative to copyright and copyright-like barriers. There are other pertinent regulations and considerations to follow when publishing or using PSI (e.g., privacy and fraud; as these are pertinent even without copyright, it is silly and unnecessarily complicating to include them in copyright licenses) and other important ways to make PSI more useful technically and politically (e.g., open formats, focusing on PSI that facilitates accountability rather than openwashing).

Eliminate copyright and copyright-like restrictions

No longer barriers to use of PSI, because no longer barriers to use of information. May be modulated down to any general copyright or copyright-like barrier reduction, where the barrier is pertinent to use of PSI. Examples: eliminate sui generis database restrictions where they exist, increase threshold of originality required for information to be subject to copyright restriction, expand exceptions and limitations to copyright restrictions, expand affirmative user rights.

Eliminate copyright and copyright-like restrictions for PSI

For example, works produced by employees of the U.S. federal government are not subject to copyright restrictions in the U.S. Narrower exclusions from copyright restrictions (e.g., of laws, court rulings) are fairly common worldwide. These could be generalized to include eliminate copyright and copyright-like restrictions for PSI, worldwide, and expanded to include PSI produced by contractors or other non-government but publicly funded entities. PSI could be expanded to include any information produced with public funding, e.g., research and culture funded by public grants.

“Standard” international licenses for PSI

Public copyright licenses not specifically intended for only PSI are often used for PSI, and could be more. CC0 is by far the best such license, but other Creative Commons (CC) and Open Data Commons (ODC) licenses are frequently used. Depending on the extent to which the licenses used leave copyright and copyright-like restrictions in place (e.g., CC0: none; CC-BY-NC-ND, lots, thus considered non-open) and how they are applied (from legislative mandate for all PSI to one-off use for individual reports and datasets at discretion of agency), could have effect similar to eliminating copyright and copyright-like restrictions for PSI, or almost zero effect.

Universal Government License

Governments at various levels have chosen to make up their own licenses rather than use a standard international license. Some of the better reasons for doing so will be eliminated by the forthcoming version 4.0 of 6 of the CC licenses (though again, CC0 has been the best choice, since 2009, and will remain so). But some of the less good reasons (uncharitable characterization: vanity) can’t be addressed by a standard international license, and furthermore seem to be driving the proliferation of sub-sub-national licenses, down to licenses specific to an individual town.

Ideally this extreme license proliferation trend would terminate with mass implementation of one of the above options, though this seems unlikely in the short term. Maybe yet another standard license would help! The idea of an “open government license” which various governments would have a direct role in creating and stewarding has been casually discussed in the past, particularly several years ago when the current proliferation was just beginning, the CC 4.0 effort had not begun, and CC and ODC were not on the same page. Nobody is particularly incented to make this unwieldy project happen, but nor is it an impossibility — due to the relatively small world of NGOs (such as CC and the Open Knowledge Foundation, of which ODC is a project) and government people who really care and know about public licenses, and the possibility their collective exhaustion and exasperation over license details, incompatibility, and proliferation could reach a tipping point into collective action. There’s a lot to start from, including the research that went into CC-BY-4.0, and the OGL UK 2.0, which is a pretty good open license.

But why think small? How many other problems could be addressed simultaneously?

  • Defend the traditional meaning of ‘open government’ by calling the license something else, e.g., Universal/Uniform/Unified Government License.
  • Rallying point for public sector worldwide to commit more firmly and broadly to limiting copyright and copyright-like barriers to use of PSI, more rapidly establishing global norm, and leading to mandates. The one thing to be said for massive PSI license proliferation could be increased commitment from proliferating jurisdictions to use their custom licenses (I know of no data on this). A successful UGL would swamp any increased local commitment due to local vanity licenses through much higher level expectation and mandate.
  • Make the license work well for software (including being approved by the Open Source Initiative), as:
    • Generically “open” licenses are inevitably used for software, whether the steward apparently intends this (OGL UK 2.0) or does not (CC).
    • The best modern permissive license for software (Apache 2.0) is relatively long and unreadable for what it does, and has an discomfiting name (not nearly as bad as certain pro sports organizations, but still); it ought be superseded.
  • Ensure the license works for other domains, e.g., open hardware, which don’t really require domain-specific licenses, are headed down the path of proliferation and incompatibility, and that governments have obvious efficiency, regulatory, security, and welfare interests in.
  • Foster broader “open innovation community” engagement with government and public policy and vice versa, and more knowledge transfer across OIC domains, on legal instruments at the least.
  • Uniform Public License may be a better name than UGL in some respects (whatever the name, it ought be usable by the public sector, and the general public), but Government may be best overall, a tip of the hat to both the vision within governments that would be necessary to make the license succeed, and to the nature of copyright and copyright-like barriers as government regulatory regimes.

National jurisdiction licenses for PSI

A more likely mechanism for license proliferation deceleration and harm reduction in the near term is for governments within a national jurisdiction to use a single license, and follow various license stewardship and use best practices. Leigh Dodds recently blogged about the problem and highlighted this mechanism in a post titled The Proliferation of Open Government Licences.

Sub-national jurisdiction licenses for PSI

Each province/state and sub-jurisdiction thereof, down to towns and local districts, could use its own vanity license. This appears to be the trend in Canada. It would be possible to push further in this direction with multiple vanity licenses per jurisdiction, e.g., various licenses for various kinds of data, reports, and other materials.

Licenses for each PSI dataset or other work

Each and every government dataset or other publication could come with its own bespoke license. Though these licenses would grant permissions around some copyright and copyright-like restrictions, I suspect their net effect would be to heighten copyright and copyright-like restrictions as a barrier to both the use and publication of PSI, on an increased cost basis alone. This extreme highlights one of the downsides of copyright licenses, even unambiguously open ones — implementing, understanding, and using them can be seen as significant cost centers, creating an additional excuse for not opening materials, and encouraging the small number of people who really understand the mechanisms to be jealous and wary of any other reform.

None

Included for completeness.

Privatization of PSI copyright

Until now, I’ve assumed that copyright and copyright-like restrictions are barriers to use of PSI. But maybe there aren’t enough restrictions, or they aren’t allocated to the right entities, such that maximum value is realized from use of PSI. Control of copyright and copyright-like restrictions in PSI could be auctioned off to entities with the highest ability to extract rents from PSI users. These businesses could be government-owned, with various public-private partnerships in between. This would increase the direct contribution of PSI to GDP, incent the creation and publication of more PSI, ensure PSI is maintained and marketed, reaching citizens that can affordneed it, and provide a solid business model for Government 2.0, academia, cultural heritage, and all other publicly funded and publicly interested sectors, which would otherwise fail to produce an optimal level of PSI and related materials and innovations.

Do not let any of the above trick you into paying more attention to possible copyright and copyright-like barriers and licenses than actually doing stuff, especially with PSI, especially with “data”, doubly with “government data”.

I agree with Denny Vrandečić’s paradoxical sounding but correct directive:

Data is free. Free the data!

I tried to communicate the same in a chapter of the Data Journalism Handbook, but lacked the slogan.

Data is free. Free the data!

And what is not data? ☻

Addendum: Entirely by coincidence (in response to a European Commission consultation on PSI, which I had already forgotten about), today posts by Timothy Vollmer for the Communia Association and Creative Commons call out the license proliferation problem and endorse public domain as the default for PSI.

Economics and the Commons Conference [knowledge stream] report

Wednesday, October 30th, 2013

Economics and the Common(s): From Seed Form to Core Paradigm. A report on an international conference on the future of the commons (pdf) by David Bollier. Section on the knowledge stream (which I coordinated; pre-conference post) copied below, followed by an addendum with thanks and vague promises. First, video of the stream keynote (slides) by Carolina Botero (introduced by me; archive.org copy).

III. “Treating Knowledge, Culture and Science as Commons”

Science, and recently, free software, are paradigmatic knowledge commons; copyright and patent paradigmatic enclosures. But our vision may be constrained by the power of paradigmatic examples. Re-conceptualization may help us understand what might be achieved by moving most provisioning of knowledge to the commons; help us critically evaluate our commoning; and help us understand that all commons are knowledge commons. Let us consider, what if:

  • Copyright and patent are not the first knowledge enclosures, but only “modern” enforcement of inequalities in what may be known and communicated?
  • Copyright and patent reform and licensing are merely small parts of a universe of knowledge commoning, including transparency, privacy, collaboration, all of science and culture and social knowledge?
  • Our strategy puts commons values first, and views narrow incentives with skepticism?
  • We articulate the value of knowledge commons – qualitative, quantitative, ethical, practical, other – such that knowledge commons can be embraced and challenged in mainstream discourse?

These were the general questions that the Knowledge, Culture and Science Stream addressed.

Knowledge Stream Keynote Summary

Carolina Botero Cabrera, a free culture activist, consultant and lawyer from Colombia, delivered a plenary keynote for the Knowledge Stream entitled, “What If Fear Changes Sides?” As an author and lecturer on free access, free culture and authors’ rights, Botero focused on the role of information and knowledge in creating unequal power relationships, and how knowledge and cultural commons can rectify such problems.

“If we assume that information is power and acknowledge the power of knowledge, we can start by saying that controlling information and knowledge means power. Why does this matter?” she asked. “Because the control of information and knowledge can change sides. The power relationship can be changed.”

One of the primary motives of contemporary enclosures of information and knowledge, said Botero, is to instill fear in people – fear of violating copyright law, fear of the penalties for doing so. This inhibits natural tendencies to share and re-use information. So the challenge facing us is to imagine if fear could change sides. Can we imagine a switch in power relationships over the control of knowledge – how we produce, distribute and use knowledge? Botero said we should focus on the question: “How can we switch the tendency of knowledge regulation away from enclosure, so that commons can become the rule and not the exception?”

“There are still many ways to produce things, to gain knowledge,” said Botero, who noted that those who use the word “commons” [in the context of knowledge production] are lucky because it helps name these non-market forms of sharing knowledge. “In Colombia, we don’t even have that word,” she said.

To illustrate how customary knowledge has been enclosed in Colombia, Botero told the story of parteras, midwives, who have been shunted aside by doctors, mostly men, who then asserted control over women’s bodies and childbirth, and marginalized the parteras and their rich knowledge of childbirth. This knowledge is especially important to those communities in remote areas of Colombia that do not have access to doctors. There is currently a huge movement of parteras in Colombia who are fighting for the recognition of their knowledge and for the legal right to act as midwives.

Botero also told about how copyright laws have made it illegal to reproduce sheet music for songs written in 18th and 19th century Colombia. In those times, people simply shared the music among each other; there was no market for it. But with the rise of the music industry in the 20th century, especially in the North, it is either impossible or unaffordable to get this sheet music because most of it is copyrighted. So most written music in Colombia consists of illegally photocopied versions. Market logic has criminalized the music that was once natural and freely flowing in Colombian culture. Botero noted that this has increased inequality and diminished public culture.

She showed a global map illustrating which nations received royalties and fees from copyrights and patents in 2002; the United States receives more than half of all global revenues, while Latin America, Africa, India and other countries of the South receive virtually nothing. This is the “power relationships” that Botero was pointing to.

Botero warned, “We have trouble imagining how to provision and govern resources, even knowledge, without exclusivity and control.” Part of the problem is the difficulty of measuring commons values. Economists are not interested, she said, which makes it difficult to go to politicians and persuade them why libraries matter.

Another barrier is our reliance on individual incentives as core value in the system for regulating knowledge, Botero said. “Legal systems of ‘intellectual property’ place individual financial incentives at the center for knowledge regulation, which marginalizes commons values.” Our challenge is to find ways to switch from market logics by showing that there are other logics.

One reason that it is difficult to displace market logics is because we are reluctant or unable to “introduce the commons discourse from the front door instead of through the back door,” said Botero. She confessed that she herself has this problem because most public debate on this topic “is based on the premise that knowledge requires enclosure.” It is difficult to displace this premise by talking about the commons. But it is becoming increasingly necessary to do so as new policy regimes, such as the Transpacific Trade (TPP) Agreement, seek to intensify enclosures. The TPP, for example, seeks to raise minimum levels of copyright restriction, extend the terms of copyrights, and increase the prison terms for copyright violations.

One way to reframe debate, suggested Botero, is to see the commons “not as the absence of exclusivity, but the presence of non-exclusivity. Th is is a slight but important difference,” she said, “that helps us see the plenitude of non-exclusivity” – an idea developed by Séverine Dussolier, professor and director of the Revue Droit des Technologies de l’Information (RDTI, France). This shift “helps us to shift the discussion from the problems with the individual property and market-driven perspective, to a framework and society that – as a norm – wants its institutions to be generative of sharing, cooperation and equality.”

Ultimately, what is needed are more “efficient and effective ways to protect the ethic and practice of sharing,” or as she put it, “better commoning.” Reforming “intellectual property” is only one small part of the universe of knowledge commoning, Botero stressed. It also includes movements for “transparency, privacy, collaboration, and potentially all of science and culture.”

“When and how did we accept that the autonomy of all is subservient to control of knowledge by the few?” asked Botero. “Most important, can we stop this? Can we change it? Is the current tragedy our lack of knowledge of the commons?” Rediscovering the commons is an important challenge to be faced “if fear is going to change sides.”

An Account of the Knowledge, Culture and Science Stream’s Deliberations

There were no presentations in the Knowledge Stream breakout sessions, but rather a series of brief provocations. These were intended to spur a lively discussion and to go beyond the usual debates heard at free and open software/free culture/open science conferences. A primary goal of the breakout discussions was to consider what it means to regard knowledge as a commons, rather than as a “carve-out” exception from a private property regime. The group was also asked to consider how shared knowledge is crucial to all commoning activity. Notes from the Knowledge Stream breakout sessions were compiled through a participatory titanpad, from which this account is adapted.

The Knowledge Stream focused on two overarching themes, each taking advantage of the unique context of the conference:

  1. Why should commoners of all fields care about knowledge commons?
  2. If we consider knowledge first as commons, can we be more visionary, more inclusive, more effective in commoning software, science, culture, seeds … and much more?

The idea of the breakout session was to contextualize knowledge as a commons, first and foremost: knowledge as a subset of the larger paradigm of commons and commoning, as something far more than domain-specific categories such as software, scientific publication and educational materials.

An overarching premise of the Knowledge Stream was the point made by Silke Helfrich in her keynote, that all commons are knowledge commons and all commons are material commons. Saving seeds in the Svalbaard Seedbank are of no use if we forget how to cultivate them, for example, and various digital commons are ultimately grounded in the material reality of computers, electricity infrastructures and the food that computer users need to eat.

There is a “knowledge commons” at the center of each commons. This means that interest in a “knowledge commons” isn’t confined to those people who only care about software, scientific publication, and so on. It also means that we should refrain from classifying commons into categories such as “natural resources” and “digital,” and begin to make the process of commoning itself the focal point.

Of course, one must immediately acknowledge that digital resources do differ in fundamental ways from finite natural resources, and therefore the commons management strategies will differ. Knowledge commons can make cheap or virtually free copies of intangible information and creative works, and this knowledge production is often distributed at very small scales. For cultural commons, noted Philippe Aigrain, a French analyst of knowledge governance and CEO of Sopinspace, a maker for free software for collaboration and participatory democracy, “the key challenge is that average attention becomes scarcer in a world of abundant production.” This means that more attention must be paid on “mediating functions” – curating – and “revising our cultural expectations about ‘audiences’.”

It is helpful to see the historical roots of Internet-enabled knowledge commons, said Hilary Wainwright, the editor behind the UK political magazine Red Pepper and a research at the Transnational Institute. The Internet escalated the practice of sharing knowledge that began with the feminist movement’s recognition of a “plurality of sources.” It also facilitated the socialization of knowledge as a kind of collective action.

That these roots are not widely appreciated points to the limited vision of many knowledge commons, which tend to rely on a “deeply individualistic ethical ontology,” said Talha Syed, a professor of law at the University of California, Berkeley. This worldview usually leads commoners to focus on coercion – enclosures of knowledge commons – as the problem, he said. But “markets are problematic even if there is no monopoly,” he noted, because “we need to express both threats and positive aspirations in a substantive way. Freedom is more than people not coercing us.”

Shun-Ling Chen, a Taiwanese professor of law at the University of Arizona, noted that even free, mass-collaboration projects such as Wikipedia tend to fall back on western, individualistic conceptions of authorship and authority. This obscures the significance of traditional knowledge and history from the perspective of indigenous peoples, where less knowledge is recorded by “reliable sources.”

As the Stream recorded in its notes, knowledge commons are not just about individual freedoms, but about “marginalized people and social justice.” “The case for knowledge commons as necessary for social justice is an undeveloped theme,” the group concluded. But commons of traditional knowledge may require different sorts of legal strategies than those that are used to protect the collective knowledge embodied in free software or open access journal. The latter are both based on copyright law and its premises of individual rights, whereas traditional knowledge is not recognized as the sum of individual creations, but as a collective inheritance and resource.

This discussion raised the question whether provisioning knowledge through commons can produce different sorts of “products” as those produced by corporate enclosures, or whether they will simply create similar products with less inequality. Big budget movies and pharmaceuticals are often posited as impossibilities for commons provision (wrongly, by the way). But should these industries be seen as the ‘commanding heights’ of culture and medicine, or would a commons-based society create different commanding heights?”

One hint at an answer comes from seeing informality as a kind of knowledge commons. “Constructed commons” that rely upon copyright licenses (the GPL for software, Creative Commons licenses for other content) and upon policy reforms, are generally seen as the most significant, reputable knowledge commons. But just as many medieval commons relied upon informal community cooperation such as “beating the bounds” to defend themselves, so many contemporary knowledge commons are powerful because they are based on informal social practice and even illegality.

Alan Toner of Ireland noted that commoners who resist enclosures often “start from a position of illegality” (a point made by Ugo Mattei in his keynote talk). It may be better to frankly acknowledge this reality, he said. After all, remix culture would be impossible without civil disobedience to various copyright laws that prohibit copying, sharing and re-use – even if free culture people sometimes have a problem with such disrespectful or illegal resistance. “Piracy” is often a precursor to new social standards and even ne w legal rules. “What is legal is continent,” said Toner, because practices we spread now set traditions and norms for the future. We therefore must be conscious about the traditions we are creating. “The law is gray, so we must push new practices and organizations need to take greater risks,” eschewing the impulse to be “respectable” in order to become a “guiding star.”

Felix Stalder, a professor of digital culture at Zurich University of the Arts, agreed that civil disobedience and piracy are often precisely what is needed to create a “new normal,” which is what existing law is explicitly designed to prevent. “Piracy is building a de facto commons,” he added, “even if it is unaware of this fact. It is a laboratory of the new that can enrich our understanding of the commons.”

One way to secure the commons for the future, said Philippe Aigrain of Sopinspace, is to look at the specific challenges facing the commons rather than idealizing them or over-relying on existing precedents. As the Stream discussion notes concluded, “Given a new knowledge commons problem X, someone will state that we need a ‘copyleft for X.’ But is copyleft really effective at promoting and protecting the commons of software? What if we were to re-conceptualize copyleft as a prototype for effective, pro-commons regulation, rather than a hack on enclosure?”

Mike Linksvayer, the former chief technology officer of Creative Commons and the coordinator of the Knowledge Stream, noted that copyleft should be considered as “one way to “force sharing of information, i.e., of ensuring that knowledge is in the commons. But there may be more effective and more appropriate regulatory mechanisms that could be used and demanded to protect the commons.”

One provocative speculation was that there is a greater threat to the commons than enclosure – and that is obscurity. Perhaps new forms of promotion are needed to protect the commons from irrelevance. It may also be that excluding knowledge that doesn’t really contribute to a commons is a good way to protect a commons. For example, projects like Wikipedia and Debian mandate that only free knowledge and software be used within their spaces.


Addendum

Thanks to everyone who participated in the knowledge stream. All who prepared and delivered deep and critical provocations in the very brief time allotted:
Bodó Balázs
Shun-Ling Chen
Rick Falkvinge
Marco Fioretti
Charlotte Hess
Gaëlle Krikorian
Glyn Moody
Mayo Fuster Morrell
Prabir Purkayastha
Felix Stalder
Talha Syed
Wouter Tebbens
Alan Toner
Chris Watkins

Also thanks to Mayo Fuster Morrell and Petros for helping coordinate during the stream, and though neither could attend, Tal Niv and Leonhard Dobusch for helpful conversations about the stream and its goals. I enjoyed working with and learned much from the other stream coordinators: Saki Bailey (nature), Heike Löschmann (labor & care), Ludwig Schuster (money), and especially Miguel Said Vieira (infrastructure; early collaboration kept both infrastructure and knowledge streams relatively focused); and stream keynote speaker Carolina Botero; and conference organizers/Commons Strategy Group members: David Bollier, Michel Bauwens, and Silke Helfrich (watch their post-conference interview).

See the conference wiki for much more documentation on each of the streams, the overall conference, and related resources.

If a much more academic and apolitical approach is of interest, note the International Association for the Study of the Commons held its 2013 conference about 10 days after ECC. I believe there was not much overlap among attendees, one exception being Charlotte Hess (who also chaired a session on Governance of the Knowledge and Information Commons at the IASC conference).

ECC only strengthened my feeling (but, of course I designed the knowledge stream to confirm my biases…) that a much more bold, deep, inclusive (domains and methods of commoning, including informality, and populations), critical (including self-critical; a theme broached by several of the people thanked above), and competitive (product: displacing enclosure; policy: putting equality & freedom first) knowledge commons movement, or vanguard of those movements. Or as Carolina Botero put it in the stream keynote: bring the commons in through the front door. I promise to contribute to this project.

ECC also made me reflect much more on commons and commoning as a “core paradigm” for understanding and participating in the arrangements studied by social scientists. My thoughts are half baked at best, but that will not stop me from making pronouncements, time willing.