Monday 23 December 2002

Please, sir, can I have some more constraints?

I appear to be one of the few to have appreciated Burningbird’s post about potential problems with the newly announced Creative Commons Licenses. The general reaction has been one of horror that anyone could actually question what is clearly intended as A Good Thing.

Interesting too, though mainly dispiriting, how little time it’s taken for the term Stop Energy to join Ad Hominem, Racist, Anti-Semitic, Sexist, and Homphobic as a fast and effective means of avoiding reasoned debate. Anyone with half-a-teaspoon of common sense and a couple of sprinkles of imagination could see that Burningbird’s reservations were articulated in good faith and in the hope of encouraging a productive discussion. Instead, the CCL advocates (with the notable exception of Matt Haughey) seemed outraged at her temerity in questioning the impact of a CC license on a weblog’s RSS feed—an problem that those who designed the licenses had clearly not considered.

I’d almost decided not to implement a CC license for any of my weblog content. My instinctive distrust of schemes cooked up by lawyers for improving the common good was echoed in Dorothea Salo’s question: “What is the good of automatically branding creativity with the mark of the lawyers, as if there were no other way to think or act toward it?” And the example Dorothea cited—of the ripoff artist who authored a spurious Don Quixote continuation, thus prompting Cervantes to write an inspired second half of Don Quixote—exemplified the best response an artist can make to his or her imitators.

I was equally influenced by Burningbird’s framing of the issue as a difference between optimists (the advocates of the CCL) and pessimists (those who worry about unintended consequences). Except that instead of pessimism and optimism, I prefer to see the problem as Thomas Sowell describes it, in terms of the conflict between constrained and unconstrained visions:

The constrained vision is a tragic vision of the human condition. The unconstrained vision is a moral vision of human intentions, which are viewed as ultimately decisive. The unconstrained vision promotes pursuit of the highest ideals and the best solutions. By contrast, the constrained vision sees the best as the enemy of the good—a vain attempt to reach the unattainable being seen as not only futile but often counterproductive, while the same efforts could have produced a viable and beneficial trade-off…

Running through the tradition of the unconstrained vision is the conviction that foolish or immoral choices explain the evils of the world—and that wiser or more moral and humane social policies are the solution… By contrast, the constrained vision sees the evils of the world as deriving from the limited and unhappy choices available, given the inherent moral and intellectual limitations of human beings.

Sowell uses Adam Smith’s The Wealth of Nations as an exemplar of the constrained vision. Smith, he says, believed that “economic benefits to society were largely unintended by individuals, but emerged systematically from the interactions of the marketplace, under the pressures of competition and the incentives of individual gain.”

People could also be persuaded to act altruistically, though for

reasons ultimately reducible to self-interest. It was not an atomistic theory that individual self-interests added up to the interest of society. On the contrary, the functioning of the economy and society required each individual to do things for other people; it was simply the motivation behind these acts—whether moral or economic—which was ultimately self-centered. In both his moral and economic analyses, Smith relied on incentives rather than dispositions to get the job done.

Therein lies the source of my uneasiness about the Creative Commons Licenses: nothing I’ve read about the licenses (on the Creative Commons website and elsewhere) explains in a persuasive manner why granting such a license is truly in the interest of the creator of the work—whereas both observation and experience have led me to the conviction that self-interest is the single most reliable indicator of human behavior.

Certainly, the Creative Commons FAQ mentions self-interest in their answer to the question: Why should I turn my work over to the public domain, or make it available under a Creative Commons Custom license, if copyright provides more legal protection?

You might do so for a few reasons. Some people may be attracted by the notion of others building upon their work, or by the prospect of contributing to an intellectual commons. As the Creative Commons community grows, licensors will have the satisfaction of helping develop new ways to collaborate. Or you might license your stuff purely out of self-interest. A scholar might want his writings to be copied and shared so that his ideas spread around the world. An upstart designer may want to encourage the unfettered dissemination of her sketches to help build a reputation. An established commercial musician might post samples to whet the public’s appetite for his other, fully protected songs. A political activist may want her message to reach the widest possible audience through unlimited copying. Our licenses can help implement such strategies, all while leaving you in ultimate control of your copyright. Read more examples.

One example is Get Creative, a 1.5 Mb Flash animation that, tellingly, starts with the case of a musician who adds a bass track to another band’s songs. This is easy to understand since music is, if not primarily then substantially, a collaborative art. We already have, in our own corner of Blogaria, a successful example of the collaboration envisaged by Creative Commons. Scott Andrew La Pera reworked a Shannon Campbell song, Dreaming of Violets, by “inserting himself as her backing band.” The result, Dreaming Of Violets (redux), absolutely delighted Shannon:

I’m absolutely, unbelievably, entirely in love with it. I would marry it and have 10,000 of its babies, if that were at all possible.

I have no doubt that the Creative Commons founders envisage the same thing happening a million times over, with just as many happy outcomes. But what if Shannon Campbell had hated Scott Andrew La Pera’s reworking of her song? Scott had the decency and integrity to email her his new version before mentioning the process on his site. What if, since this occurred a couple of months ago, he had published his new version without asking her? Alternatively, she might have released Dreaming of Violets under an Attribution-NonCommercial License, only to have someone else publish a version she despised and see it turn into a runaway hit.

Another Creative Commons example is that of filmmaker Jack and photographer Jill, who has taken a dramatic black and white picture of the Empire State Building. Jack can use Jill’s photo in his digital movie because it is available under a Creative Commons License. The reason for Jill’s largesse? Because “when she is still trying to build her reputation, she wants people to copy her work as much as possible.”

But what if Jill, in an attempt to have her work reach the widest possible audience, has chosen an Attribution-No Derivs. Licence that allows commercial uses of her work? And Jack’s film wins the Oscar for Best Documentary Short Subject. Knowing that Jack has profited handsomely from his film, will Jill be satisfied with merely the kudos? How will she feel when she realizes the photograph is being reproduced in books and magazines around the world—attributed to her, of course—without yielding her a cent in royalties? What if it turns out to be the definitive image of the Empire State Building? CCL advocates would argue that Jill could parlay the success of that photograph into a successful career. I rather think that every time Jill saw the photograph she’d feel stabs of resentment and regret at her own naivety.

And, unfortunately, it doesn’t appear that she can change her mind, since every Creative Commons license:

What is the duration of the work’s copyright? Let’s assume that Jill took the photograph after January 1st, 1978. In that case, the duration of the copyright is life plus 70 years; or, if she publishes the picture before the end of next week (December 31, 2002), the copyright period is life plus 70 years or until December 31, 2047, whichever is the greater.

“Not revocable” means “not capable of being revoked or cancelled.”

So Jill has given away all potential revenue from anywhere in the world, for why would anyone want to pay her to use the picture when they can have it for free? And she has also ensured that her descendants are unlikely to profit from the work.

Let’s use an example closer to home… some years ago I took a series of photographs of sick, recovering, and dead babies in the Neonatal Intensive Care ward of the Childrens Hospital in Sydney. If I publish these pictures on my website under an Attribution-NoDerivs-NonCommercial License, anyone can copy, distribute, display, and perform unaltered copies of the photographs as long as they give me credit and do not use them for commercial purposes.

What recourse do I have if one or more of these photographs is used in a context of which I disapprove? For example, on a poster advocating euthanasia for terminally-ill infants or in a right-to-life brochure—both published by non-profit organizations.

What’s to stop someone overlaying racist captions on photographs I took in the New Guinea highlands twenty-seven years ago, should I choose to release them under an Attribution-NonCommercial License? Or to include the photographs in a white-supremacist collage? How am I to respond when the pictures I made at a Jewish funeral appear as illustrations in an anti-Semitic diatribe? Not only has my artistic intent been subverted, but I have also allowed myself to be portrayed as a racist or an anti-Semite.

As far as I can tell, there is no remedy for such misuses of my work. The Creative Commons FAQ makes no reference to such situations. For Matt Haughey, one of the key advantages is that people don’t have to ask to use his work:

Here’s the reality of my situation and why I applied licenses to my work: over the past few years several dozen people have emailed me to request permission for reuse of my photos and essays. I had to answer each one individually, and I’d like to make that automatic for them instead. This way, more people use my creations (since they don’t have to go through the bother of asking first), my name gets out there in more places (with attribution requirements), and wild new creations are made based on my work (since I allow for derivative works). Putting something online and into the world already has lots of risk, but I don’t want to interfere at all with the legitimate reuses of my work, in fact I want to encourage it.

I guess it depends on how you define legitimate. But one thing seems certain. As long as they stick to the terms of the license, no-one is under any obligation to contact me and say: “By the way, I’ll be using this picture of yours in my racist/sexist/anti-Semitic/homophobic/neo-Nazi publication.” What makes it worse is that, as in the case of Jill’s photograph of the Empire State Building, the licenses I grant apply worldwide, last for the duration of the work’s copyright, and are not revocable.

A similar argument applies to writing since it’s entirely possible that the text of an essay released under an Attribution-NonCommercial License could be subtly (or blatantly) modified to convey a meaning opposite to that which I’d intended. It hardly matters that my original essay is available online if my name and reputation have been tainted by this revision (and negation) of my ideas.

If I’ve got this all wrong, then I’m happy to be corrected. Yet I can’t help but ask:

How is it in my best interest to so comprehensively relinquish control of the context in which my work appears?

And what am I offered in return, apart from a warm inner glow?

I note that, having had “many of [her] concerns about the legality of CC licenses… allayed by [Denise Howell’s] writeup, Burningbird has decided “to incorporate CC licenses, gradually, throughout [her] web sites.” I read Denise Howell’s step-by-step explanation and it allayed none of the concerns I’ve raised.

“Why do this at all?” asks Denise. “Creative Commons explains this nicely, she suggests. Well, explains is the FAQ entry I’ve already mentioned; this is the explanation of the licenses that includes “every license applies worldwide, lasts for the duration of the work’s copyright, and is not revocable;” and nicely is a Flash animation that, to me anyway, is long on style and short on substance.

“Collaboration across space and time,” says the confident, optimistic Flash movie voiceover, “…creative authorship with people you’ve never met. Standing on the shoulders of your peers. That’s what this Internet is all about. It’s can be that easy when you skip the intermediaries.”

Picasso and Braque stood on each other’s shoulders as they invented Cubism but they were careful (and sufficiently smart) to maintain the copyright on their works. The Creative Commons Licenses, on the other hand, typify Thomas Sowell’s unconstrained vision of human nature by relying on people (“I’ve never met”) to behave honorably and to respect the integrity of my work. Spend five minutes on “this Internet” and tell me I’m not bound for disappointment.

I wouldn’t be so skeptical if the Creative Commons Licenses relied less on a rose-tinted vision of benign collaboration and instead provided greater safeguards for the real interests of those licensing their original works; or if, to borrow Thomas Sowell’s words, they replaced—to at least some degree—their “moral vision of human intentions” with a more pragmatic acceptance of the “inherent moral and intellectual limitations of human beings.”

In other words—and pardon my bluntness—what’s in it for me? Really? Other than distress and disillusionment?



It's nice hear you confirm some reasons why I and my ilk won't be automated out of business any time soon. ;->

The flipside of your post title, and the impact of granting a license, is "Please, sir, can I remove some constraints?," and you correctly point out that a creator of copyrightable works should want to do that before going down that road. Creative Commons makes it easier to grant a license. You otherwise might need to hire a lawyer, or use one of the other licensing schemes that preceded CC, to accomplish this. Creative Commons tries to make the licensing process more streamlined and straightforward. Your points emphasize some of the the potential shortcomings of such a "one stop shopping" solution, as well as the importance of considering how any license will change the balance of risks from the otherwise applicable legal framework. In my case, I was/am more concerned with assuring readers that use-with-attribution (with some other restrictions) is ok, than I was/am with potentially objectionable copying and displaying. Creative Commons goes a long way toward making more accessible a task which otherwise might be beyond people's abilities or means. In particular cases, hiring counsel -- or simply not licensing -- might still be the best way to go.

Posted by: Denise Howell on 24 December 2002 at 02:25 AM

I am so caught up in my writing that I never saw how my photos could also be mis-used.

That non-revocable portion of the license is too permanent. Too much loss of control. As you say, too much trust in people we've never met. Now I must return to rethinking the use of the license with my material. All my material.

Thanks for another voice in this debate. Nice to know that I'm not the only person tilting at this particular windmill.

Posted by: Burningbird on 24 December 2002 at 08:16 AM

Jonathon, Shelley, et al. Do have a look at what I'm saying over at mediAgora. I want a Smithian solution to these issues. Text is tricky, but for audio, video and pictures the model I propose is a lot fairer. As I wrote last June when I first posted mediAgora:

Perfect digital copies make distribution cheap; digital editing and recording tools make production cheaper too. It is easier than ever to create and give away work, and Creative Commons will help you do that.

Getting heard and getting credit are great, but wouldn't you like to get paid too? mediAgora defines a fair, workable market model that works with the new realities of digital media, instead of fighting them.

Posted by: Kevin Marks on 24 December 2002 at 06:08 PM

Interesting point about the problem of someone reusing your work, non-commercially, with attribution, in a way you don't "approve" of [racist captions on your Papua New Guinea photos, a provocative example: who doesn't hate racism?], whereby your work could be "subtly (or blatantly) modified to convey a meaning opposite to that which I'd intended," with the result that your "name and reputation have been tainted by this revision (and negation) of [your] ideas." You sound like McDonald's trying to quash the satirical and derisive use of the "Mc" prefix we're all so familiar with [McWorld, etc.) ...
It's really the kind of mythmaking, of "second-order signification," described by Barthes , you're objecting to, isn't it? In a sense, all recontextualizing of your work is mythmaking of this kind, isn't it? Would you then, for instance, deny "fair use" rights to a critic who, in your view, misconstrues a passage of your work cited in her review, and who uses that misinterpretation in an attempt to publicly discredit you? Would you require persons of inferior intelligence who misunderstood your work to return it to the bookstore? If so, would you give them a refund? Would you refuse to accept money from purchasers of your books who you felt bought them for the wrong reason, the way people bought "Ulysses" or "Lolita" because they heard it was dirty? Will you remove this comment from your Web log if you feel it reflects badly on you? The way Krushchev ordered Stalin expunged from history?
I just can't see that by allowing your hypothetical racists to use your work in ways you didn't intend that you "have also allowed [yourself] to be portrayed as a racist or an anti-Semite." You might certainly feel compelled to publicly decry this use of your work and clarify your intentions. Works of art go out into the world and are subject to all sorts of cultural pressures, become tokens in all sorts of cultural games, the way that newspapers end up on the bottom of birdcages or papyri manuscripts of Vergil got used to mummify crocodiles at Oxyrhyncus. Realistically, there's nothing you can do about it beyond refusing to publish in the first place. [Virgil tried to burn the "Aeneid," or so they say.] You could always argue, along with NRA crowd, that you didn't and couldn't foresee your product being used in the way it was. That should restore your reputation, shouldn't it?
And who knows? In the case of the racist collage, the controversy might even stimulate some new sales! "What did he really mean? Let's buy the original and see!"

Posted by: iggy on 25 December 2002 at 02:46 AM

Thanks for the comments, all. Though, as yet, no-one has been able to explain what benefits the Creative Commons license offers me.

Iggy, thanks for your detailed response. I have no problem with any kind of fair use, as the examples I've quoted should indicate -- Braque and Picasso's combined invention of Cubism and Cervantes's response to another author's "sequel" to Don Quixote. You might wish to read Dorothea Salo's post to get a clearer sense of what I mean. I like too your "provocative" McDonalds and NRA examples: who (in our liberal elite corner of the world) doesn't hate McDonalds or the NRA?

Though it doesn't seem to me that the examples you provide in your second paragraph (critic, stupid readers, purchasers acting in "ill faith") are particularly relevant, your underlying argument has given me pause for thought.

As for removing your comment, take some time and work your way back through my posts. I'm yet to remove any comments no matter how uncomplimentary or distasteful I might find them.

Works of art, once out in the world, *are* subject to all kinds of pressures. My original belief was that these pressures are constrained by the current copyright laws, which I suggest strike an fair balance between fair use and intellectual property rights -- which Digital Rights Management does not.

Posted by: Jonathon Delacour on 1 January 2003 at 04:07 PM

This discussion is now closed. My thanks to everyone who contributed.

© Copyright 2002-2003 Jonathon Delacour