Copyright, copyleft, and culture
Althaf
Copyright, copyleft, and culture
By Jake Edge
July 13, 2011
Nina Paley has certainly stirred things up with her recent
"rantifesto" on free culture and free software. It has spawned
numerous responses on various blogs, both from supporters and those
who disagree with her contention that the Free Software Foundation
(FSF) is being hypocritical in its licensing of its web pages and
other non-software works. For some people it is a bit galling to see
an organization that is set up to ensure the right to create and
distribute derivative works (subject to some conditions, of course) of
software, be so steadfast in its refusal to apply those same freedoms
to text and other works.
Paley's main example is quite cogent. In her essay, she restates the
famous "four freedoms" from the FSF's free software definition and
applies them to free culture. In doing so, she has arguably created a
derivative work of the FSF's definition, which is not compatible with
the "verbatim copying license" that governs text on the GNU web site.
Though the FSF web site (unlike the GNU web site) is covered by the
Creative Commons Attribution-NoDerivs (CC BY-ND) license, and Paley
confuses the two a bit, either of the those two licenses would
restrict derivative works. It's a little hard to argue, however, that
what Paley has done is not in keeping with the spirit of free software
even though it has been applied to text that is specifically licensed
to restrict that kind of activity.
In the unlikely event it ever becomes an issue, an argument could
certainly be made that Paley exercised her "fair use" rights when
creating the four freedoms of free culture. But fair use is a weak and
uncertain defense—at best—for anyone wishing to make use of a
restrictively-licensed work. Fair use is jurisdiction-dependent and,
even in places like the US where it is an established precedent,
judges can interpret it in wildly different ways. There is also the
small matter of the cost to defend against a claim of copyright
violation even if it seems to be fair use. In some ways, it's
reminiscent of the uphill battle faced by a software company accused
of a patent violation for a patent with "obvious" prior art—it's
extremely costly to defend against the suit without any real assurance
of getting a sensible ruling. A license that explicitly allows
derivative works provides much more certainty.
The argument that Paley is making is not that all works should be
licensed freely—though, of course, that is the argument that the FSF
makes for software—but that the champion of the copyleft movement
should more liberally license its non-software works. The FSF has
already run afoul of other free software advocates (e.g. Debian) for
documentation licensed under its GNU Free Documentation License—at
least for documentation that has "invariant" sections which are
required to be carried along with any derivative work. Cynical
observers have pointed out that the main reason that the invariant
sections exist is so that the GNU Manifesto can be more widely spread.
It is difficult to argue that the invariant sections make the
documentation more free, however, and they certainly make it difficult
to create derivative works in the same spirit as is done with
software.
As Paley points out, the creator of a work (be it software, text,
photographs, video, fine art, etc.) cannot know the kinds of things
that a downstream user might create with a suitably licensed work.
This is an argument the free software community should be very
familiar with, and would seem to be at the heart of what free software
is. All Paley is trying to do is to broaden that freedom to other
works in a free culture movement that seeks to remove the restrictions
on at least some of the cultural works that are created by our
society. Much like the FSF takes projects and other organizations to
task over their "anti-freedom" moves with respect to software, Paley
is essentially doing the same to the FSF. She is asking the FSF (and
the much larger FOSS community) to join forces in helping to foster
free culture.
Make no mistake, free culture is clearly under serious attack from the
large "content" industries. Fair use is well-nigh impossible to
actually exercise with organizations like the RIAA and MPAA along with
media giants like Disney trying to maximize copyright in all
dimensions. Without a major sea change, nothing that is under
copyright today will ever come out from under it and fall into the
public domain. Legislators will keep extending copyright terms so that
Disney—whose success has largely been based on remixing public domain
works—never loses the copyright on its iconic mouse. Without armies of
expensive lawyers and lobbyists, the copyright situation is unlikely
to change, but individuals certainly can participate in free culture
to create a separate commons that is available to all.
Are there differences between software and other works? Of course
there are, but they aren't such huge differences that the same
principles cannot apply to all. In fact, a perfect example is
copyright itself, which applies "equally" to a wide variety of
different forms of expression. Another example is Paley's restatement
of the four freedoms—it could be adopted by the FSF for software
without any real loss. There is no huge chasm between technical and
cultural works as some have claimed, and both kinds of works embody
the opinion of their creator in one form or another.
Another part of Paley's argument should seem rather familiar to our
community as well. She bemoans the dilution—perhaps distortion—of the
"free culture" term by including things that are licensed in ways that
aren't truly free. We have struggled with the same basic problem, most
recently in the "open source" vs. "open core" debates, but, more
generally, in trying to agree on what constitutes "free" (or "open")
in the context of software.
The proliferation of the non-commercial (NC) versions of CC licenses
on supposedly free culture works is one of the problems that Paley
highlights. As she rightly points out, these are essentially "field of
use" restrictions that wouldn't be accepted for free software or open
source licenses. In addition, though Paley doesn't specifically
mention it, NC restrictions are a murky quagmire that just make it
difficult for potential users to know what's acceptable and what
isn't. Can you use an NC-licensed photo on your blog if you also run
Google ads to try to offset the hosting costs? Or on a commercial blog
service that runs its own ads? Those are questions for lawyers, which
is reason enough make folks leery of NC whether they are inclined
toward free culture or not—it's simpler to just use regular copyright
and decide on a case-by-case basis whether the use is suitably
non-commercial.
The no-derivatives (ND) variants of CC licenses have their own set of
problems as well. A strict interpretation would not allow a photo to
be cropped, resized, or have text placed on it, for example. An ND
text couldn't have typos fixed or an introduction added either, which
seriously reduces the ability to use it in any reasonable way. NC
and/or ND restrictions may be just what the creator intends, but they
don't really contribute to free culture in any sensible way.
In the end, there are going to be plenty of non-free works, both
software and otherwise. Whoever creates a work gets to choose the
license it's available under, and no one has argued otherwise. Paley
is just trying to make a fairly reasonable argument that free software
and free culture should be allies, and that it's disappointing to see
the FSF make fairly arbitrary distinctions between types of
expression. The free culture movement is still in its infancy, more or
less where free software was 20 years ago or so. If free culture can
make similar inroads against the content behemoths that free software
has made in the software world, we will all be better off for it. And
that, in a nutshell, is what Paley is advocating.
--
/althaf k backer/