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[pdftitle={The Creative Common Misunderstanding},
pdfkeywords={Creative Commons, Copyleft, Open Content, Open Source, Free Software, anti-copyright},
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\begin{document}


\title{The Creative Common Misunderstanding}

\author{Florian Cramer}

\date{Oct. 8, 2006}

\maketitle

Lately, the growing popularity of the Creative Commons licenses has
been accompanied by a growing amount of criticism.  The objections are
substantial and boil down to the following points: that the Creative
Commons licenses are fragmented, do not define a common minimum standard
of freedoms and rights granted to users or even fail to meet the
criteria of free licenses altogether, and that unlike the Free Software and
Open Source movements, they follow a philosophy of reserving rights of
copyright owners rather than granting them to audiences. Yet it would be too
simple to only blame the Creative Commons organization for those issues.
Having failed to set their own agenda and competently voice what they
want, artists, critics and activists have their own share in the
mess.

In his paper ``Towards a Standard of Freedom: Creative Commons and the
Free Software Movement,'' free software activist Benjamin Mako Hill
analyzes that ``despite CC's stated desire to learn from and build upon
the example of the free software movement, CC sets no defined limits and
promises no freedoms, no rights, and no fixed qualities.  Free
software's success is built upon an ethical position. CC sets no such
standard.''\footnote{Benjamin Mako Hill, \cit{Towards a Standard of
Freedom: Creative Commons and the Free Software Movement},
\url{http://www.advogato.org/article/851.html}} In other words, the
Creative Commons licenses lack an underlying ethical code, political
constitution or philosophical manifesto such as the Free Software
Foundation's \cit{Free Software Definition} or Debian's \cit{Social
Contract} and the Open Source Initiative's \cit{Open Source
Definition}.\footnote{\url{http://www.gnu.org/philosophy/free-sw.html},
\url{http://www.debian.org/social_contract},
\url{http://www.opensource.org/docs/definition.php}} Derived from each other, 
these three documents all define free and open source
software as computer programs that may be freely copied, used for any
purpose, studied and modified on source code level and distributed in
modified form. The concrete free software licenses, such as the GNU
General Public License (GPL), the BSD license and the Perl Artistic
License, are not ends in themselves, but only express individual
implementations of those constitutions in legal terms; they translate
politics into policies.

Such politics are absent from the Creative Commons. As Mako Hill points
out, the ``non-commercial'' CC licenses prohibit use for any purpose,
the ``no-derivatives'' licenses prohibit modification, and the CC
``Sampling License'' and ``Developing Nations License'' even disallow
verbatim copying.  As a result, none of the user rights granted by free
and open source software are ensured by the mere fact that a work has
been released under a Creative Commons license. To say that something is
available under a CC license is meaningless in practice. Not only
does the CC symbol look like a fashion logo, it also isn't more than
one.  Richard Stallman, founder of the GNU project and author of the
Free Software Definition, finds that ``all these licenses have in common
is a label, but people regularly mistake that common label for something
substantial.''\footnote{\url{http://www.linuxp2p.com/forums/viewtopic.php?p=10771
}} Yet some if only vague programmatic substance is expressed in CC's motto ``Some rights
reserved.'' Beyond being, quote Mako Hill, a ``relatively hollow
call,'' this slogan factually reverses the Free Software and Open Source
philosophy of reserving rights to \emph{users}, not copyright owners,
in order to allow the former to become producers themselves. 

While Mako Hill embraces at least a few of the CC licenses, such as
the ShareAlike License under which his own essay is available, Stallman
finds it a ``self-delusion to try to endorse just some of the Creative
Commons licenses, because people lump them together; they will
misconstrue any endorsement of some as a blanket endorsement of
all.''\footnote{\url{http://www.linuxp2p.com/forums/viewtopic.php?p=10771}}
According to an entry on his weblog, Stallman had ``asked the leaders of
Creative Commons privately to change their policies, but they declined,
so we had to part
ways.``\footnote{\url{http://www.fsf.org/blogs/rms/entry-20050920.html}}
The Debian project even considers all CC licenses non-free and
recommended, in 2004, that ``authors who wish to create works compatible
with the Debian Free Software Guidelines should not use any of the
licenses in the Creative Commons license
suite,''\footnote{\url{http://lists.debian.org/debian-legal/2004/07/msg01193.html}}
mostly because their attribution clause limits modifications, because of
restrictions on the Creative Commons trademark and ambiguously worded
anti-``Digital Rights Management'' (DRM) provisions that could be
interpreted as prohibiting distribution over any encrypted channel,
including for example PGP-encoded E-Mail and anonymizing proxy servers.

Whatever stance one may adopt, the name ``Creative Commons'' is
misleading because it doesn't create a commons at all. A picture released,
for example, under the Attribution-ShareAlike license cannot legally be
integrated into a video released under the Attribution-NonCommercial
license, audio published under the Sampling License can't be used on
its soundtrack. Such incompatible license terms put what is
supposed to be ``free content'' or ``free information'' 
back to square one, that is, the default restrictions of copyright --
hardly that what Lawrence Lessig, founder of the Creative Commons, could
have meant with ``free culture'' and ``read-write culture'' as opposed to
``read-only culture.'' In his blog entry ``Creative Commons Is
Broken,'' Alex Bosworth, program manager at the open source company
SourceLabs, points out that ``of eight million photos'' posted under a
CC license on Flickr.com ``less than a fifth allow free remixing of
content under terms similar to an open source license. More than a third
don't allow any modifications at
all.''\footnote{\url{http://www.sourcelabs.com/blogs/ajb/2006/02/creative_commons_is_broken.html}}
The ``principle problem with Creative Commons,'' he writes, ``is that
most of the creative commons content is not actually reuseable at all.'' 

While these problems may at least hypothetically be solved through
improvements of the CC license texts -- with the license
compatibility clauses in the draft of the GNU GPL version 3 as a
possible model --, there are farther-reaching issues on the level of
politics as opposed to merely policies.  CC's self-definition that ``our
licenses help you keep your copyright while inviting certain uses of
your work -- a `some rights reserved' copyright'' translate into what
the software developer and Neoist Dmytri Kleiner phrases as
follows: ``the Creative Commons, is to help `you' (the `Producer') to
keep control of `your' work.'' Kleiner concludes that ``the right of the
`consumer' is not mentioned, neither is the division of `producer' and
`consumer' disputed. The Creative `Commons' is thus really an
Anti-Commons, serving to legitimise, rather than deny, Producer-control
and serving to enforce, rather than do away with, the distinction
between producer and consumer.''\footnote{Dmytri Kleiner, \cit{The
Creative Anti-Commons and the Poverty of Networks},
\url{http://info.interactivist.net/article.pl?sid=06/09/16/2053224}}
Citing Lessig's examples of DJ Dangermouse's ``Grey Album'' and Javier
Prato's ``Jesus Christ: The Musical'' -- ``projects torpedoed by the
legal owners of the music used in the production of the works'' --
Kleiner sharply observes that ``the legal representatives of the Beatles
and Gloria Gaynor could just as easily have used Creative Commons
licences to enforce their control over the use of their work.''

The distinction between ``consumers'' and ``producers'' couldn't be more
bluntly stated than on CC's home page.  It displays, on its very top,
two large clickable buttons, one labelled ``FIND Music,
photos and more,'' the other ``PUBLISH Your Stuff, safely and legally,''
the former with a down arrow, the latter with an up arrow in its
logo.\footnote{\url{http://creativecommons.org/images/find.gif},
\url{http://creativecommons.org/license}} The small letters are no less
remarkable than the capitals. Upon first glance, the adverbs ``safely and legally'' 
sound odd and like material for a future cultural history museum of
post-Napster and post-9/11 paranoia. But above all, they name and perpetuate the
fundamental misunderstanding artists seem to have of the Creative
Commons: Free licenses were not meant to be, and aren't, a liability
insurance against getting sued for use of third-party copyrighted or
trademarked material. Whoever expects to gain this from putting work
under a Creative Commons license, is completely mistaken.

Artists are desperately looking for a solution to a problem that
ultimately resulted from their own efforts of redefining art.
When art was granted, in Western cultures at least, an
autonomous status, artists were -- to a moderate degree -- exempt
from a number of legal norms.  Kurt Schwitters was not
sued for collaging the logo of German Commerzbank into his ``Merz''
painting which yielded his ``Merz'' art. Neither did Andy
Warhol receive injunctions for using Coca Cola's and Campbell's
trademarks. As long as these symbols remained inside the art world,
they did not raise corporate eyebrows.
Experimental artists embraced the Internet just because it
did away with the separation of white cubes -- in which 
logos and trademarks were safe from being mixed up with the
original ones -- and the outside world. Mainly thanks to the Internet, artistic simulations of corporate entities were believable for the first time.
The Yes Men could pose as the World Trade Organisation and get invited
to the World Economic Forum as WTO representatives, 0100101110101101.org
could tactically disguise themselves as the Nike company.  Older
artistic simulations like  Res Ingold's ``Ingold Airlines'' were not
only transparent and clumsy in comparison, but also on the safe grounds
of an art system with little or no interference of corporate lawyers.
But ever since the World Wide Web, file sharing and cheap or free
authoring software tore down walls between art and non-art practice, 
producers and consumers, former consumers were held liable as producers,
and artistic production became subject to non-art world norms, as
obvious in the FBI investigations of Steve Kurtz and ubermorgen.com for
bioterrorism, respectively tampering the U.S. presidential elections.

Previous artistic critiques of corporate and intellectual ownership 
were much less efficacious even where they were programmatically more
radical.  Between 1988 and 1989, a series of countercultural ``Festivals
of Plagiarism,'' organized by Stewart Home, Graham Harwood and others,
struggled with wide gaps between radical anti-copyright rhetoric and
an artistic practice limited mostly to photocopied mail art work. John
Berndt, a participant of the London Festival of Plagiarism,
left with the impression that ``a repetitive critique of 'ownership` and
'originality` in culture was juxtaposed with collective events, in which
a majority of participants [\ldots] simply wanted to have their
'aesthetic` and vaguely political artwork exposed,''\footnote{John Berndt, \cit{Proletarian Posturing and the
Strike that Never Ends}, SMILE magazine, Baltimore, 1988} making fellow
Neoist tENTATIVELY, a cONVENIENCE conclude that ``Festivals of Recycling
might have been more accurate descriptions'' for the events: ``By virtue
of calling the act of reusing and changing previously existing material
(not even always with the intention of critiqueing said material)
'Plagiarism` the appearance of being 'radical` could be given to people
whose work was otherwise straight out of art school
teachings.''\footnote{tENTATIVELY, a cONVENIENCE, \cit{History Begins
where Life Ends}, self-published pamphlet, Baltimore 1993}

Today, similar gaps and misunderstandings exist between copyleft
activists and artists who just seek to legitimize their use of
third-party material. When Lawrence Lessig characterizes the Creative
Commons as ``'fair use`-plus: a promise that any freedoms given are
always in addition to the freedoms guaranteed by the
law,''\footnote{http://creativecommons.org/weblog/entry/5681} this is
technically correct, but nevertheless misunderstandable, especially for
people who aren't legal experts. Putting a work under a CC license --
or even a non-ambiguously free GNU or BSD license -- means to
\emph{grant} rather than to \emph{gain} uses in addition to standard
fair use. The Creative Commons do not solve the problem of how not to
get sued by Coca Cola or Campbell's at all. Non-free copyrighted
material cannot be freely incorporated into one's work no matter what
license one choses. Even worse, the opposite is true: copyright owners
are most likely to categorically refuse clearance for anything that will be
put into free circulation because the license of the work incorporating
their's would effectively relicense the latter. If, for example, 
the Corbis corporation would permit the photograph
of Einstein sticking out his tongue -- for which it holds the rights --
to be reproduced in a freely licensed book, it would free the picture
for anyone else's use as well. Since this can hardly be expected from the
Bill Gates-owned company, free licensing often restrains rather than
expands one's possibilities of using third-party material.

This example reveals a crucial difference between software development
and artistic practice: Programming can sustain itself on its own, self-built
library of reusable work, art hardly so. The GNU copyleft works on
the premise that modifications are also contributions. If, for example,
a company like IBM choses to modify the Linux kernel to run on its own
servers, the GNU license forces it to give back the added code to
the development community. And the more code is available as free
software, the higher the incentive for others to simply build on
existing free code libraries and give back changes rather than building a new
program from scratch. This explains why even for computer companies,
free software development can make more economic sense than the close source
commercial model. In addition, free software development profits from
a difference between source code and perceivable appearance that doesn't have an exact equivalent in most artistic work: Programs can be written
that look and behave similar or identical to proprietary counterparts as
long as they don't use proprietary code and do not infringe on patents
and trademarks.  This way, AT\&T's Unix could be rewritten as BSD and
GNU/Linux, and Microsoft Office could be cloned as OpenOffice. Even
patents which could spoil such borrowings aren't as internationally
universal and not remotely as long-lasting as copyright. In other words,
free software development could be an ``appropriation art'' without
copyright infringement.

The same isn't possible for most artists, however. It
makes little sense for them to restrict their uses to
material whose copyright has either expired or
that has been released under sufficiently free terms. The Coca Cola
logo can't be cloned as a copylefted ``FreeCola'' logo, and
it would be pointless for the Yes Men to pose as an ``OpenWTO'' or for 
0100101110101101.org to have run as ``GNUke'' instead of Nike. If even
harmless collaging, sampling and quoting becomes risky because of media
industrial Internet copyright paranoia and whole business models based
on injunctions and lawsuits, this is a political matter of fair use, not
of free licenses. In the worst case, free licenses, all the more fluffy
and pseudo-free ones like the Creative Commons, could be used to legitimize new
restrictions of fair use legislation, or even its abolition altogether, 
with the alibi that the so-called ``ecosystem,'' or ghetto, of more or less freely licensed
work provides enough fair use for those who bother to care.\footnote{This scenario
isn't too far-fetched considering Lessig's recent advocacy of the
non-open file format Adobe/Macromedia's Flash which he calls a ``crucial
tool of basic digital education in a free culture'' (quotation
translated from the German article
\url{http://www.heise.de/newsticker/meldung/78278/}, see also
\url{http://lwn.net/Articles/199877/}) Since proprietary file formats
cannot be universally accessed and lock information into technology
whose availability is at the mercy of a single vendor, they restrain
fair use.} 

It is not hard to bash the Creative Commons for being an
organization run with little understanding of the arts, and not even a
good understanding of open source and free software philosophy. 
On the other hand,
artists themselves have failed to voice themselves what they want. The
exceptions are few and rather marginal: the anti-copyright philosophies and
politics of Lautr\'{e}amont, Woody Guthrie (who, according to Dmytri
Kleiner, released his songbook with the license that ``anybody caught
singin' it without our permission, will be mighty good friends of ours,
cause we don't give a dern.  Publish it. Write it. Sing it. Swing to it.
Yodel it``), Lettrists, Situationists, Neoists, Plunderphonics
musicians and some Internet artists including the French artlibre.org
collective whose ``Free Art License'' predates the Creative Commons by
two years.\footnote{\url{http://artlibre.org/licence/lal/en/}} 

A team of lawyers whose work consists of creating, as Bosworth puts it,
``low cost legal templates,'' the Creative Commons organization has
simply listened to all kinds of artists and activists, trying to do
justice to diverse and sometimes contradictory needs and expectations,
with licenses ``designed to give artists choice`` (Mako Hill) rather
than prioritizing free use and reuse of information. In contrast, Free
Software and Open Source are, like any human and civil rights effort,
universalist at their core, with principles that are
neither negotiable, nor may be culturally relativized. 

If someone is to blame for the fact that artists, political activists
and academics from the humanities have largely failed to recognize those
essentials, then it is Eric S. Raymond, founder of the ``Open Source Initative''
(\url{http://www.opensource.org}), the group that coined the
term ``Open Source'' in 1998. The main advantage of the term ``Open
Source'' over ``Free Software'' is that it doesn't merely refer to
computer programs, but evokes broader cultural connotations.\footnote{
It is not
coincidental, for example, that the term ``Open Content'' and the web
site \url{http://www.opencontent.org} was launched in 1998 only few
months after the first propagation of ``Open Source,'' until its founder
David Wiley sacked the initiative in 2004 in order to -- ironically or
not -- become a director of Creative Commons.} For most 
people with artistic backgrounds, GNU's ``Free Software'' sounded too
confusingly similar to (close-source) ``freeware'' and ``shareware.''
``Open Source'' sparked an all the richer imagination as Raymond
didn't simply pitch it as an alternative to proprietary ``intellectual
property'' regimes, but as a ``Bazaar'' model of open, networked
collaboration. Yet this is not at all what the Open Source Initiative's
own ``Open Source Definition'' says or is about. Derived from Debian's ``Free
Software Guidelines,'' it simply lists criteria licenses have to meet
in order to be considered free, respectively open source. The fact that a work is
available under such a license might enable collaborative work on it,
but it doesn't have to by definition. Much free software -- the GNU utilities and the
free BSDs for example -- is developed by rather closed groups and
committees of programmers in what Raymond calls a ``Cathedral''
methodology. Conversely, proprietary software companies such as
Microsoft may develop their code in distributed ``Bazaar'' style.
Nevertheless, the homepage of \url{http://www.opensource.org} states that
the ``basic idea behind open source'' is about how ``software evolves,''
``at a speed that, if one is used to the slow pace of conventional
software development, seems astonishing,'' thus producing ``better
software than the traditional closed model.'' Regardless which position
one takes in the philosophical and ideological dispute between ``Free
Software'' and ``Open Source,'' the self-characterization of Open Source
as a development model mixes up cause and effect, being inconsistent
with what the Open Source Definition, on the same website, qualifies as
Open Source, i.e.  software whose licenses fulfill its criteria of
openness. 

Given how ``Open Source'' has been propagated as a model of networked
collaboration instead of user rights or free infrastructures, the gap
between the lip-service paid to it in the arts and humanities and the
factual use of free software and copylefts comes to little surprise.
``Cultural'' free software conferences whose organizers and speakers run
Windows or the Mac OS on their laptops continue to be the norm. With
few exceptions, art education hardly ever involves free software, but
is tied to proprietary software tool chains. Yet -- often vague or
ill-informed -- ``Open Source'' references abound in media studies and
electronic arts writing. 

The problem is not so much that people do not use free operating
systems, but that software-political correctness anxiety prevents a more
honest critical discourse. A debate on ``why free software doesn't work
for us'' would be more productive for free software development than the current
hypocrisy. Recent discussions on why, for example, free software culture
involves disproportionally few women  -- even in comparison to proprietary
software development -- have at least begun to tackle some of those issues.

Productive critique, after all, is needed.  Eight years after the
coinage of ``Open Source,'' Raymond's Hegelian claims of superior
development methodologies sound increasingly hollow. Free software
hasn't displaced proprietary software at all. Despite its
success on servers and in embedded systems, it is unlikely to take over
mainstream personal computing any time soon.  Free software, it seems,
has its strength in building software infrastructure: kernels, file
systems, network stacks, compilers, scripting languages, libraries, web,
file and mail servers, database engines. It lags behind proprietary
offerings, for example, in conventional desktop publishing and video
editing, and, as a rule of thumb, in anything that isn't highly
modularized or used a lot by its own developer community.  The closer
the software is to the daily needs and work methods of programmers and
system administrators, the higher typically its quality. 

Similar rules seem to apply to free information, respectively ``Open
Content'' development. The model works best for infrastructural,
general, non-individualistic information resources, with Wikipedia and
FreeDB (and lately MusicBrainz) as prime examples. Similarly, the
cultural logic of sounds and images circulating under CC licenses is
largely that of stock music, stock photography and clip art, regardless
the fact that current CC licenses mostly fail to permit their
``mashups,'' boiling down to little more than ``Web 2.0'' lifestyle
logos. Beyond software, infrastructural information and publishing that
waives reproduction rights, the value of free licensing is somewhat
doubtful.  Experimental, radical art and activism that does not play
nice with third-party copyrights and trademarks can't be legally
released and used under whatever license anyway.  Its work should rather
-- and explicitly -- be released into the public domain with, quote
jodi, ``all wrongs reversed'' and, quote Kleiner, ``all rights detourned
under the terms of the Woody Guthrie General License Agreement.'' For
professional artists, this simply means to acknowledge the reality of
contemporary art economics: that artists, with the exception of a
handful of stars, no longer live from producing material goods (for
which copyright granted lifetime monopolies, or at least the illusion of
continuous revenue streams), but like 17th century project entrepreneurs
from commissioned projects whose material products have little or no
market value by themselves.

Copyright, having turned from regulation into subsidy of publishing
industries, is the 21st century equivalent of drug legislation. Everyone
knows that it is obsolete, dysfunctional, and depriving people of their
rights; absurd wars are foughts in its name.  The simple fix is to
abolish it.


\end{document}
