Friday, March 12, 2010

In which I endorse the provisions of the Creative Commons License, but reject the license.

The Creative Commons project does great work by writing licenses that allow people to feel that their rights are being protected while they allow others to reproduce and distribute their work. In particular, I was drawn to the Attribution-Noncommercial-Share Alike license. There are pretty strong moral arguments to be made for all of the provisions.

With regard to attribution, it just seems fair to mention who wrote something when you reproduce it. It's good for readers, who get to know where they should look for more of the same thought. It's good for writers, who in our vanity want to be recognized for our genius. And it's good for society to be able to operate under the assumption that information has a source, and one that you can track down pretty easily.

The noncommercial restriction makes sense partly because I really don't think ideas should be subject to the same treatment as commodities. The notion that having knowledge entitles you to make money off that knowledge is flawed in the first place -- and it's double-flawed when you're not the source of that knowledge. It seems deeply unfair for someone to get rich off the creation of someone who's giving their work away for free.

The primary reason I endorse the share-alike restriction is that I'm opposed to the idea of intellectual property, and so everything should be shared like this, whether or not its source is my writing. But, again, this especially applies when the original work is being given freely. Remember that the "share alike" restriction can only apply to reproductions or derivative works, not to works that fall under fair-use provisions. (As a refresher, basically if your work is legitimately new and not, say, an adaptation or a translation, it's fair use. Most judges are too conservative in what counts as fair use, but this is basically the idea.) What we're talking about is blatantly derivative works being placed under a more restrictive license, which then potentially opens them up to reproduction for profit. And it pisses me off to know end when, say, Disney adapts some classic folktale, benefiting in the process from the existence of the public domain, and then fights tooth and nail to keep their adaptation private and profitable.

So yeah. The CC BY-NC-SA license pretty much exactly defines how I think artistic production should be treated in a free society. But I'm still not touching it.

The problem is, the CC licenses all work on the foundation of copyright law -- that set of laws and precedents governing what disgusting plutocrats refer to as "intellectual property." And to quote the first director of the US Office of Patents and Copyrights:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Inventions then cannot, in nature, be a subject of property.
Basically, many of the American founders thought the idea of they copyright was, deep down, an abomination, and that something else would hopefully be worked out at some point, but for now, it was important to encourage people to write and (especially) invent. In order to create incentives for people to invent and write and paint, they offered these people monopolies -- which were not, by any means, natural rights, but were considered completely artificial fictions designed to incentivize invention.

Since then, we've developed a natural-rights conception of intellectual property, which says that I somehow have a right to make money of my idea, because it's mine -- and that this right to a monopoly should last, for practical purposes, forever (75 years after my death, for most kinds of creative works, these days).

The problem is, subjecting things like ideas, which are inherently non-scarce, to restrictions like this is terrible -- for example, it allows monopoly-holders to drive up prices on life-saving drugs well above the cost of producing those drugs, thus restricting poor people's access to them.

There is no right to tell people what they can do with your idea once you tell them about it. It's poisoning us both as individuals and as a society to keep talking about whose idea something is. Yes, you thought of it. But it's an idea that you thought of, not your idea.

And that's what I think is wrong with the CC license. It's written with the assumption that the creator of a work has the right to restrict your use of it -- the assumption of copyright law. The "licensor" is allowing you to reproduce hir work, provided that you follow certain restrictions. The basis for this is that the licensor has the right to apply any of a large set of restrictions to hir work, and is choosing this limited, reasonable set as a favor to you.

That's bullshit. The authors of creative works don't have the right to decide how you use them.

So let me say this:

From a moral standpoint, anything I write on this site should only be used under the terms specified by the Creative Commons BY-NC-SA license: tell people I wrote it (and, ideally, link to this blog); don't make money off of it; and share it willingly with others, under these or very similar terms.

But from a legal standpoint, I'm not willing to claim those rights under copyright law. I'm not giving you permission to reproduce anything I write, or to produce derivative works, under those terms. You have the right to do so. So, from a legal standpoint, everything on this blog is in the public domain (under CC0). I waive all legal rights to it.

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To the extent possible under law, the person who associated CC0 with this work has waived all copyright and related or neighboring rights to this work.

However, he believes you have a moral obligation to comply with the restrictions of the Attribution-Noncommercial-Share Alike license.

Look here for clarification.