Evaluating the Creative Commons Project

This is my attempt to summarize the arguments that Noise and I made during a conversation we had about Creative Commons while we were hanging out at the Financial Cryptography 2004 in Key West, Florida.

Please see my journal entry to read and participate in the ongoing discussion about these issues. I welcome your opinions! Even if you don't have a LiveJournal account, i encourage you to post your thoughts as an anonymous guest (and add your signature if you like).

Arguments For and Against

Against CC For CC
Axiom It's easy to write and use your own copyright license. It's hard to write and use your own copyright license.
Consequent CC lulls artists into using canned licenses instead of learning how to write their own. CC provides an easier way for artists to select conditions under which their works may be used.
Outcome Artists are more likely to make false assumptions about copyright and to give up rights they might have wanted to keep. Sharing and re-use occurs that might have been otherwise prevented by fear or difficulty of writing copyright licenses.

Good and Harm Caused by CC

Harm Good
People use CC when they don't need to, giving up rights they could have kept. People share when they might not otherwise have decided to do so.
People don't think of coming up with more interesting or useful licenses. People reuse when they might not otherwise have been able to do so.
CC is abused and applied to public domain material. Standardized licenses allow standardized metadata to be applied to works, so reusable material can be found in databases and search engines.

For an example of a "more interesting" license, consider the case of a musician who posts their samples online so that other people can use those samples in their songs. He might want to require the users of those samples to send back tapes of their songs — but CC doesn't let him put that in the license.

Two Opposing Analogies

Crypto Analogy

CC is providing convenient packaged alternatives for use by non-experts who want to spend their time creating art instead of writing licenses, just as crypto experts provide prepackaged cryptography procotols for use by application programmers who want to spend their time creating application software instead of writing crypto algorithms.

The Law mathematics
lawyers crypto experts
laws and legal terms theorems and algorithms
CC copyright licenses crypto protocol libraries
CC attribute bits crypto use cases
artists application programmers

HTML Analogy

CC provides artists with a shortcut to poorly customized licenses instead of an opportunity to learn about copyright law, just as WYSIWYG HTML editors provide Web page authors with a shortcut to poor-quality HTML instead of an opportunity to learn how to write HTML themselves.

laws and legal terms HTML tags
CC license generator WYSIWYG HTML editor
CC copyright licenses generated HTML
artists amateur Web page authors
copyright law professor graphic design instructor
writing your own license editing raw HTML code

Is Using Your Own Copyright License Easy or Hard?

The Simplicity of Copyright Law

The beauty of copyright is that it's one of the few areas of the law where the law lets you do it yourself. All you have to do is describe in plain English what conditions must be met by users of your content. Teaching people that they can do this empowers them to determine their own terms for sharing.

In order to create a copyright license, the only requirements are:

  1. You have to be able to write a complete sentence.
  2. You have to be able to clearly express what you want.
  3. You must abide by your words.

Being able to make, understand, and uphold simple contracts are basic skills that are part of being a competent human being.

CC appears to retain too much because users of CC-licensed material don't realize they still have fair use. CC appears to retain too little because artists who apply CC licenses can only crudely express which rights they want to keep.

The Cost of Evaluating Risk

It may be factually true that writing copyright licenses is as easy as writing a simple English sentence, but writing the license isn't enough. I claim that in order to apply a custom copyright license, there are four requirements:

  1. You have to be able to write a complete sentence.
  2. You have to be able to clearly express what you want.
  3. You must abide by your words.
  4. You have to decide to use the license.

Making the decision to use a copyright license requires an evaluation of the risks and benefits involved, and that's the hard part. The content creator's risk is something like:

probability of violation *
(time and effort required to enforce + injury caused by violation -
probability of winning the case * compensation received by winning)

Estimating all these factors is difficult when you come up with your own custom license.

(Counterargument: but the probability of winning is 1! You should just register your copyright for $30 and you don't have to worry about it — a simple English sentence is sufficient.)

The content licensor's risk is something like:

probability of differing interpretations *
probability that creator will decide to sue *
(time and effort required to defend +
probability of losing the case * compensation required to creator)

Using an established, standardized license reduces these risks for both parties, minimizes uncertainty, and makes it easier for content creators and licensors to skip these risk estimation steps.

Shortcomings of CC

CC licenses have no timeout or revocation options. The artist cannot specify a date at which the license expires or a date at which the work enters the public domin. The artist cannot revoke licenses.

Unresolved Questions

What is wrong with the CC-crypto analogy?

In what ways does CC fail to educate people about copyright?

Why is the GPL a great thing but not CC?

Why let someone else write your licenses for you? / Why don't you sew your own clothes?

(Notes by Ping from a conversation with Noise, in the wee hours of the morning of 11 February 2004.)