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copyleft.org

Monday, December 1st, 2014

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

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

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


Detailed Analysis of the Creative Commons Attribution-ShareAlike Licenses

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

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

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

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

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

Freedom as in Free Culture, Documentation, Education…

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

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

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

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

Free Definitions

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

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

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

Non-software Copylefts

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

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

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

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

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

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

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

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

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

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

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

Creative Commons Attribution-ShareAlike

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

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

GPL and CC-BY-SA differences

FIXME this section ought refernence GPL portion of tutorial extensively

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

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

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

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

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

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

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

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

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

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

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

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

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

CC-BY-SA versions

FIXME section ought explain jurisdiction ports

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

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

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

FIXME subsections might not be the right strcuture or formatting here

1.0 (2002-12-16)

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

2.0 (2004-05-25)

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

2.5 (2005-06-09)

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

3.0 (2007-02-23)

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

4.0 (2013-11-25)

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

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

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

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

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

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

The 4.0 versioning process was much more extensively researched, public, and documented than previous CC-BY-SA versionings; see https://wiki.creativecommons.org/4.0 for the record and https://wiki.creativecommons.org/Version_4 for a summary of final decisions.

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

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

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

The best course of action at this juncture would be to read http://creativecommons.org/licenses/by-sa/4.0/legalcode – the entire text is fairly easy to read, and should be quickly understood if one has the benefit of study of other public licenses and of copyleft policy.

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

FIXME subsections might not be the right structure or formatting here

1 – Definitions

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

2 – Scope

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

3 – License Conditions

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

4 – Sui Generis Database Rights

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

5 – Disclaimer of Warranties and Limitation of Liability

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

6 – Term and Termination

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

7 – Other Terms and Conditions

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

8 – Interpretation

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

Enforcement

There are only a small number of court cases involving any Creative Commons license. Creative Commons lists these and some related cases at https://wiki.creativecommons.org/Case_Law.

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

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

Compliance Resources

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

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

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

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

Wikidata II

Thursday, October 30th, 2014


Wikidata went live two years ago, but the II in the title is also a reference to the first page called Wikidata on meta.wikimedia.org which for years collected ideas for first class data support in Wikipedia. I had linked to Wikidata I writing about the most prominent of those ideas, Semantic MediaWiki (SMW), which I later (8 years ago) called the most important software project and said would “turn the universal encyclopedia into the universal database while simultaneously improving the quality of the encyclopedia.”

SMW was and is very interesting and useful on some wikis, but turned out to be not revolutionary (the bigger story is wikis turned out to be not revolutionary, or only revolutionary on a small scale, except for Wikipedia) and not quite a fit for Wikipedia and its sibling projects. While I’d temper “most” and “universal” now (and should have 8 years ago), the actual Wikidata project (created by many of the same people who created SMW) is rapidly fulfilling general wikidata hopes.

One “improving the encyclopedia” hope that Wikidata will substantially deliver on over the next couple years and that I only recently realized the importance of is increasing trans-linguistic collaboration and availability of the sum of knowledge in many languages — when facts are embedded in free text, adding, correcting, and making available facts happens on a one-language-at-a-time basis. When facts about a topic are in Wikidata, they can be exposed in every language so long as labels are translated, even if on many topics nothing has ever been written about in nor translated into many languages. Reasonator is a great demonstrator.

Happy 2nd to all Wikidatians and Wikidata, by far the most important project for realizing Wikimedia’s vision. You can and should edit the data and edit and translate the schema. Browse Wikidata WikiProjects to find others working to describe topics of interest to you. I imagine some readers of this blog might be interested in WikiProjects Source MetaData (for citations) and Structured Data for Commons (the media repository).

For folks concerned about intellectual parasites, Wikidata has done the right thing — all data dedicated to the public domain with CC0.

wiki↔journal

Thursday, October 2nd, 2014

The first wiki[pedia]2journal article has been published: Dengue fever Wikipedia article, peer-reviewed version (PDF). Modern medicine comes online: How putting Wikipedia articles through a medical journal’s traditional process can put free, reliable information into as many hands as possible is the accompanying editorial (emphasis added):

As a source of clinical information, how does Wikipedia differ from UpToDate or, for that matter, a textbook or scholarly journal? Wikipedia lacks three main things. First, a single responsible author, typically with a recognized academic affiliation, who acts as guarantor of the integrity of the work. Second, the careful eye of a trained editorial team, attuned to publication ethics, who ensure consistency and accuracy through the many iterations of an article from submission to publication. Third, formal peer review by at least one, and often many, experts who point out conflicts, errors, redundancies, or gaps. These form an accepted ground from which publication decisions can be made with confidence.

In this issue of Open Medicine, we are pleased to publish the first formally peer-reviewed and edited Wikipedia article. The clinical topic is dengue fever. It has been submitted by the author who has made the most changes, and who has designated 3 others who contributed most meaningfully. It has been peer reviewed by international experts in infectious disease, and by a series of editors at Open Medicine. It has been copy-edited and proofread; once published, it will be indexed in MEDLINE. Although by the time this editorial is read the Wikipedia article will have changed many times, there will be a link on the Wikipedia page that can take the viewer back to the peer-reviewed and published piece on the Open Medicine website. In a year’s time, the most responsible author will submit the changed piece to an indexed journal, so it can move through the same editorial process and continue to function as a valid, reliable, and evolving free and complete reference for everyone in the world. Although there may be a need for shorter, more focused clinical articles published elsewhere as this one expands, it is anticipated that the Wikipedia page on dengue will be a reference against which all others can be compared. While it might be decades before we see an end to dengue, perhaps the time and money saved on exhaustive, expensive, and redundant searches about what yet needs to be done will let us see that end sooner.

I love that this is taking Wikipedia and commons-based peer production into a challenging product area, which if wildly successful, could directly challenge and ultimately destroy the proprietary competition. The editorial notes:

Some institutions pay UpToDate hundreds of thousands of dollars per year for that sense of security. This has allowed Wolters Kluwer, the owners of UpToDate, to accrue annual revenues of hundreds of millions of dollars and to forecast continued double-digit growth as “market conditions for print journals and books … remain soft.”

See the WikiProject Medicine collaborative publication page for more background on the process and future developments. Note at least 7 articles have been published in journal2wiki[pedia] fashion, see PLOS Computational Biology and corresponding Wikipedia articles. Ideally these 2 methods would converge on wiki↔journal, as the emphasized portion of the quote above seems to indicate.

Peer review of Wikipedia articles and publication in another venue in theory could minimize dependencies and maximize mutual benefit between expert authoring (which has historically failed in the wiki context, see Nupedia and Citizendium) and mass collaboration (see challenges noted by editorial above). But one such article only demonstrates the concept; we’ll see whether it becomes an important method, let alone market dominating one.


One small but embarrassing obstacle to wiki↔journal is license incompatibility. PLOS journals use CC-BY-4.0 (donor-only relative to following; the version isn’t important for this one) and Wikipedia CC-BY-SA-3.0 (recipient-only relative to previous…and following) and Open Medicine CC-BY-SA-2.5-Canada (donor-only relative to the immediately previous) — meaning if all contributors to the Dengue fever Wikipedia article did not sign off, the journal version is technically not in compliance with the upstream license. Clearly nobody should care about this second issue, except for license stewards, who should mitigate the problem going forward: all previous versions (2.0 or greater due to lack of a “later versions” provision in 1.0) of CC-BY-SA should be added to CC-BY-SA-4.0’s compatibility list, allowing contributions to go both ways. The first issue unfortunately cannot be addressed within the framework of current licenses (bidirectional use could be avoided, or contributors could all sign off, either of which would be outside the license framework).

Daniel Mietchen (who is a contributor to the aforementioned journal2wiki effort, and just about everything else relating to Wikipedia and Open Access) has another version of his proposal to open up research funding proposals up at the Knight News Challenge: Libraries site. Applaud and comment there if you like, as I do (endorsement of previous version).

Near the beginning of the above editorial:

New evidence pours in to the tune of 12 systematic reviews per day, and accumulating the information and then deciding how to incorporate it into one’s practice is an almost impossible task. A study published in BMJ showed that if one hoped to take account of all that has been published in the relatively small discipline of echocardiography, it would take 5 years of constant reading—by which point the reader would be a year behind.

A similar avalanche of publishing can be found in any academic discipline. It is conceivable that copyright helps, providing an incentive for services like UpToDate. My guess is that it gets in the way, both by propping up arrangements oriented toward pumping out individual articles, and by putting up barriers (the public license incompatibility mentioned above is inconsequential compared to the paywalled, umitigated copyright, and/or PDF-only case which dominates) to collaborative — human and machine — distillation of the states of the art. As I wrote about entertainment, do not pay copyright holders, for a good future.

Proprietary profitability as a key metric for open access and open source

Thursday, August 7th, 2014

Glyn Moody in Beyond Open Standards and Open Access:

Like open source, open access is definitely winning, even if there is some desperate rearguard action by the publishers, who are trying to protect their astonishing profit margins – typically 30-40%.

No doubt open source and open access have progressed, but the competition maintaining astonishing profit margins contradicts “definitely winning.” For publishing, see Elsevier, £0.8b profit on £2.1b revenue, and others. For software most pertinent to Moody’s post (concerning Open Document Format), see Microsoft’s business division, $16b profit on $24b revenue.

These profits coupled with the slow relative progress of open source and open access give proprietary vendors huge range to not only take “desperate rearguard action” but also to create new products and forms of lock-in with which the commons is continually playing catch-up.

We know what the commons “definitely winning” looks like — Linux (server software) and Wikipedia (encyclopedias) — and it includes proprietary vendor profit margins being crushed, most going out of business, and those remaining transitioning to service lines of business less predicated on privatized censorship.

When libraries begin mass cancellation of toll access journal subscriptions and organizations of all sorts cancel Microsoft, Adobe, and similar software subscriptions, then we can consider whether open access and open source are definitely winning. Until then the answer is definitely no.

As for what’s next for open standards and open access (Moody suggests further ODF mandates, which would be fine), the obvious answer is open source. It’s what allows realization of the promise of open standards, and the cancellation of Microsoft subscriptions. It’s also what’s next for academic publishing and everything else — what is not software will be obsolete — though cancellation of those toll access subscriptions is going to require going back to basics.

Free/open/commons advocates should consider destruction of proprietary competition profitability a key aim and metric of success or lack thereof, for both open products and policy. This metric has several benefits:

  • Indicates relative progress. Any non-moribund project/movement can make seeming progress, blind to different and potentially much greater progress by competition.
  • Implicates role of knowledge economy and policy in increasing or decreasing equality (of income and wealth, not just access).
  • Hard numbers, data readily available.
  • It’s reasonable to multiply destruction of proprietary profits when characterizing gains (so as to include decrease in deadweight loss).

Edit Oakland wiki events

Wednesday, July 9th, 2014

Saturday, July 12, there’s a big open streets event in my obscure flats neighborhood where Oakland, Emeryville, and Berkeley meet. A small stretch of San Pablo Avenue will be closed to cars (sadly not only human-driven cars, which would momentarily meet my suggestion). E’ville Eye has a comprehensive post about the event and its origins.

There will be an Oakland Urban Paths walk in the neighborhood during the event, during which obscurities will be related. Usually these walks are in locations with more obvious scenery (hills/stairs) and historical landmarks; I’m looking forward to seeing how they address Golden Gate. Last month they walked between West Oakland and downtown, a historic and potentially beautiful route that currently crosses 980 twice — edit it out!

Monday, July 14 18:00-19:30 there’s a follow-on event at the Golden Gate Branch Library — an OaklandWiki edit party. I haven’t edited Oakland Wiki much yet, but I like the concept. It is one of many LocalWikis, which relative to MediaWiki and Wikipedia have very few features or rules. This ought greatly lower the barrier to many more people contributing information pertinent to their local situation; perhaps someone is researching that? I’ve used the OaklandWiki to look up sources for Wikipedia articles related to Oakland and have noticed several free images uploaded to OaklandWiki that would be useful on Wikipedia.

Saturday, July 19 11:00-16:00 there’s a Wikipedia edit event at Impact Hub in Oakland and online: WikiProject Open Barn Raising 2014 which aims to improve Wikipedia articles about open education — a very broad and somewhat recursive (Wikipedia is an “open educational resource”, though singular doesn’t do it justice, unless perhaps made singular the open educational resource, but that would be an overstatement). If you’re interested in OER, Open Access, open policy and related tools and organizations, or would like to learn about those things and about editing Wikipedia, please participate!

Tangentially, OpenHatch (my endorsement) got a nice writeup of its Open Source Comes to Campus events at WIRED. I view these as conceptually similar to introduction to Wiki[pedia] editing events — all aim to create a welcoming space for newcomers to dive into participating in commons-based peer production — good for learning, careers, communities, and society.

Without Intellectual Property Day [edit]

Saturday, April 26th, 2014
Without Intellectual Property Day by Parker Higgins of the EFF is quite good, and released under CC-BY. Clearly deserving of adaptation. Mine below, followed by a diff.

April 26 is the day marked each year since 2000 by the World Intellectual Property Organization (WIPO) as “World Intellectual Property Day”, in which WIPO tries to associate its worldwide pushes for more enclosure with creativity.

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.

***

The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

wdiff -n eff-wipd.html eff-wipd-edit.html |colordiff |aha -w > eff-wipd-diff.html
[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="https://www.eff.org/issues/wipo">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-] {+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-] {+WIPO tries to associate its <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">domestic policy laundering</a>, but we agree that celebrating-] {+enclosure</a> with creativity.</p>+}
{+<p>Celebrating+} creativity is a good [-thing.</p>-]
[-<p>As the saying goes, though:-] {+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="https://www.eff.org/issues/intellectual-property/the-term">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-] {+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="http://notabug.com/kozinski/whitedissent">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-]
[-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-] {+laws: to+} the [-works-] {+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-] {+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-]
[-<p>It's-] {+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-] {+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying—the comedy community, to take one example, <a href="http://www.slate.com/articles/arts/culturebox/features/2014/the_humor_code/joke_theft_can_a_comedian_sue_if_someone_steals_his_material.html">will call out people</a> who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-] {+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-] {+pioneered+} the [-idea-] {+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-] {+building a commons. The digital commons+} idea [-further-] {+is being pushed in more areas+} than ever [-before.-] {+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with—Wikipedia-] {+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="http://www.sitasingstheblues.com/">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="http://www.techdirt.com/articles/20101002/20174711259/open-source-animated-movie-shows-what-can-be-done-today.shtml">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="http://www.techdirt.com/articles/20140406/07212626819/sony-youtube-take-down-sintel-blenders-open-source-creative-commons-crowdfunded-masterpiece.shtml">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="https://www.schneier.com/paper-street-performer.html">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-] {+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href="http://gondwanaland.com/mlog/2013/08/10/street-patrons-missing-coordination-protocol/">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="https://www.kickstarter.com/blog/a-big-day-for-film">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-] {+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-] {+its first feature length film, <em><a href="http://gooseberry.blender.org/">Gooseberry</a></em>.</p>+}
<h3>***</h3>
[-<p>As the Constitution tells us,-]
{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-] {+is that they can be+} calibrated [-correctly,-] {+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-]
[-<p>But it's also-] {+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="http://gondwanaland.com/mlog/2014/01/30/tech-wealth-ip/">equality</a>.</p>+}
{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-] {+the+} goal [-as well. Promoting-] {+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission—it's good to know that it doesn't have-] {+innovation. We must continue+} to [-come through systems-] {+push for both practice and <a href="http://gondwanaland.com/mlog/2014/02/09/freedoms-commons/#regulators">policy+} that [-can-] {+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-] {+called World Intellectual Freedom Day.</p>+}

Sum of all questions

Saturday, April 19th, 2014

I thoroughly enjoyed memesteader Gordon Mohr’s Quora & Wikipedia: Might one ever bail out the other? Futures of ‘Qworum’ or ‘WiQipedia’ which posits two futures in which the sites respectively decline mostly due to internal failure — essentially not adequately dealing with spam and unscrupulous behavior in both cases, though the spam and behavior is different for each.

Both futures seem plausible to me, inclusive of the decline and bail out in each. I also take the medium term absolute decline and death of Quora and steep relative decline of Wikimedia as likely. This relative assessment isn’t a knock on Quora — it and many others waiting in the wings can get big or fail — commons-based projects don’t have much experience in trying to do that (but need to, or find some other way to maintain long-term competitiveness).

Of course “waiting in the wings” is an understatement: I suspect the decline of both Quora and Wikimedia will be less due to internal failure than to being outcompeted by new entrants. Mohr has long been rumored to be working on one, but I imagine there must be many entrepreneurs dreaming of taking a chunk of Wikipedia traffic. I enjoy the Kill Hollywood request for startups, but Kill Wikipedia seems like a more plausible target for VC-term investment. (My preference is to target proprietary monopolies for destruction through competition, replacing them with commons; long ago I even imagined a financially leveraged/risk-seeking approach, but more feasible ones badly needed still.)

Go read and enjoy Mohr’s post, take it at least semi-seriously, and reflect on the future. Doing so makes me pine for something which does not yet exist: combinatorial prediction markets for everything.

I hadn’t looked at Quora in some time. I note that it still requires logging in to read, but has added Google — previously Facebook login (or not) was the only choice. There have been at least semi-serious explorations of a Wikimedia general Q&A sister project, but I’m not sure if any of them are listed in project proposals.

Research proposal revelation proposal

Monday, April 7th, 2014

As far as I know Daniel Mietchen does the very best work to bridge Wikimedia sites and freely licensed Open Access research (previous motivated link), making both much more valuable. Others doing or to do comparable or better work: I’m sorry I don’t yet know of it, and I thank you.

Mietchen has grander ideas for making research inputs, outputs, and collaboration more open and…collaborative. I wrote about his Encyclopedia of Original Research proposal (sadly unfunded as yet) a couple years ago.

Now as part of the Knight News Challenge he has a proposal for opening up research proposals:

Ideas are drivers of change, in research as much as in society at large. Current research practice is to hide ideas as long as possible and to reveal them only in formal publications that “count” in research evaluation contexts. We want to change that.

Many ideas are lost in the current closed system, and so are opportunities to collaborate and improve those few that are actually being worked on. We propose to elaborate mechanisms that would allow a transition from the current secretive model to one in which sharing research ideas is the default and seen as an invitation for collaboration, for accelerating and improving research rather than as a breach of private property.

The brief proposal is packed with ideas for making that happen (I made some small suggestions in the comments, but everything good was latent or implied before). One conceptual thing I like about the proposal is that it sets up a commons-based information revelation regime; the case for intellectual property as a revelation regime may seem quaint, but there’s nothing like a wildly better commons-based system to finally demolish that notion.

It appears there are 11 days left in the public feedback stage of the Knight News Challenge. I encourage you to read the proposal, post feedback, and applaud.

Update 20140409: I’m now an officious collaborator on this proposal. Hopefully that strengthens (commitment) rather than weakens (conflict) my endorsement of the proposal.

How different would the net be without Firefox?

Sunday, April 6th, 2014

David Flanagan, latest making claim I’ve read many times:

Without Mozilla, there would have been no Firefox, and the internet would be very different today.

Mitchell Baker in only a few more words included a combined mechanism and outcome:

We moved the desktop and browsing environments to a much more open place, with far more options and control available to individuals.

Baker further explained Mozilla aims to make an analogous difference in the computing environment of today and the future:

Today we live in a different online era. This era combines desktop, mobile devices, cloud services, big data and a social layer. It is feature-rich, highly centralized, and focused on a few giant organizations that exert control over almost all aspects of the experience. Today’s computing environment is deeply in need of an open, exciting alternative that shows what the Open Web brings to this setting — something built on parts including Firefox OS, WebGL, asm.js, and the many other innovations being developed at Mozilla. It is comparable to the desktop computing environment we set out to revolutionize when we started Mozilla.

Mozilla needs to bring a similar scope of change to the new computing era. Once again, Mozilla needs to break down the walled gardens of online life and bring openness and opportunity to all. Once again, we have the chance to build products and communities in a way that no one else will.

(Baker’s post announced Brendan Eich as CEO, Flanagan lays out some information following Eich’s resignation. That crisis presumably changed nothing about evaluations of Mozilla’s previous impact, nor its plans for analogous future impact. The crisis just provided an opportunity for many to repeat such evaluations and plans. This post is my idiosyncratic exploitation of the opportunity.)

Those are important claims and plans, and I tend to strongly agree with them. My logic, in brief:

  • there’s a lot of scope for the net (and society at large) to be substantially more or less “open” than it is or might be due to relatively small knowledge policy and knowledge economy changes;
  • there’s a lot of scope for commons-based projects to push the knowledge economy (and largely as an effect, knowledge policy) in the direction of “open”;
  • due to network effects and economies of scale, huge commons-based projects are needed to realize this potential for pushing society in an “open” direction;
  • Mozilla is one of a small number of such huge commons-based projects, and its main products have and will be in positions with lots of leverage.

Independent of my logic (which of course I doubt and welcome criticism of) for agreeing with them, I think claims about Mozilla’s past and potential future impact are important enough to be criticized and refined rather than suffering the unremitting bludgeoning of obscurity or triviality.

How could one begin to evaluate how much and what sort of difference Mozilla, primarily through Firefox, has made? Some things to look at:

  • other free/open source software browser projects;
  • competition among proprietary browsers;
  • differences between Firefox and proprietary browsers in developing and implementing web standards;
  • all aspects of Mozilla performance vs. comparable (Mozilla is different in many respects, but surely amenable to many tools of organizational evaluation and comparison) organizations;
  • 2nd order effects of a superior (for a period, and competitive otherwise) free/open source browser, e.g., viability of free desktop (though never achieving significant market share, must be responsible for huge increases in consumer surplus due through constraint on proprietary pricing and behavior) and inspiration for other open source projects, demonstration of feasibility of commons-based competition in mass market.

It’s possible that such questions are inadequate for characterizing the impact of Mozilla, but surely they would help inform such characterization. If those are the wrong questions, or the wrong sort of questions, what are the right ones? Has anyone, in any field, taken evaluation of Mozilla’s differential impact beyond the Baker quote above? I’d love to read about how the net would have been different without Firefox, and how we might expect the success or failure of new Mozilla initiatives to produce different worlds.

These kinds of questions are also important (or at a minimum, interesting to me) for other commons-based initiatives, e.g., Wikimedia and Creative Commons.

Innovation Policy in a World With Less Scarcity

Friday, March 28th, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Lemley:

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

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

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

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

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

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

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

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

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

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

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

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

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

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