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To read comments to this article, go here
Why Would an Author Choose a Creative Commons License?
Friday, July 22 2005 @ 06:35 AM EDT

When I first read about John Dvorak's attack on the Creative Commons license, I thought it was too silly to write about. For the few who missed it, he said this, among other insults:
Will someone explain to me the benefits of a trendy system developed by Professor Lawrence Lessig of Stanford? Dubbed Creative Commons, this system is some sort of secondary copyright license that, as far as I can tell, does absolutely nothing but threaten the already tenuous "fair use" provisos of existing copyright law. This is one of the dumbest initiatives ever put forth by the tech community. I mean seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes. . . .

I have begged critics of the system, such as The Register's Andrew Orlowski, to explain to me how Creative Commons works or what it's supposed to do that current copyright law doesn't do. He says, "It does nothing." Okay, then why are bloggers and do-gooders and various supporters making a point of tagging their material as being covered by Creative Commons? Is it just because it's cool and trendy—a code for being hip amongst a certain elite? There is no other answer.

Then I read Andrew Orlowski second his emotion, and I thought, hey, life is short. Let's go for it.

First, to clear up Dvorak's misunderstanding of the law, such as his mistaken idea that fair use is harmed or even touched by CC licenses, here's a serious explanation by Joe Gratz, who recently graduated from law school. Gratz takes it piece by piece, carefully explaining how the licenses work and showing all the ways Dvorak was mistaken, although tactfully.

I thought I could answer their more fundamental question, which is why would any author choose to release their work under such a license? Orlowski writes:

"Defenders of the licensing approach say it simply adds to the range of choices an artist has available to them, which is quite true. But it's also slightly disingenuous to urge performers to forego the commercial option that might lift them out of poverty. . . .

And why the reluctance to think about social agreements that reward the gifted people who give us such pleasure? . . .

Why the recourse to mechanism - the need to have every T crossed, every i dotted, and a license for every possible occasion?

It seems to really trouble people that anyone would do anything without money being the motivation or without monetary reward. The simple purpose of Creative Commons licenses, however, as Mr. Dvorak could have read for himself on their website, can be expressed in one simple, declarative sentence:

Creative Commons helps you publish your work online while letting others know exactly what they can and can't do with your work.
Is that hard? It isn't a vow of poverty. I release my work here under a Creative Commons license, so I feel qualified to answer their questions more fully. So here goes. I'll use my own experience to help them understand, if they wish to.

When I began doing Groklaw, I wanted to try juxtaposing images and text in addition to my goal of explaining legal stories in the news. Indeed, I did try, having been inspired by Scott McCloud's "Understanding Comics" and "Reinventing Comics", two of the most fascinating books I've ever read. (I see you can buy them both for only about $30.) I was also influenced by reading an online story that changed my life creatively and directly led to Groklaw, although you probably won't be able to discern why, "Friday's Big Meeting," by Rob Wittig.

I guess this is a good time to tell Rob Wittig thank you. Thank you, Rob, for putting your story online without any restrictions, so I could bump into it and have it change my life. It made Groklaw possible. Look what you did.

The connection is that it made it possible for me to write in my own voice, to realize where it was, and that changed me forever more. You can read his story online for free. He didn't even bother to put a license on it, actually, that I can see, which his lawyer would tell him means it's straight copyright, but he doesn't care. He wants you to read it.

Anyway, it made me laugh, despite a bit of content that made me uncomfortable, but overarching all of that, I saw that images could be used to advance a story in ways that were funny, because they spoke in mental leaps, visual leaps, that made me laugh. The juxtaposition was what makes you laugh. I really wanted to do something like that. The whole tank20.com experiment interests me.

So, getting back to my narrative, when I started Groklaw, I would go to Google Images and find photos or clip art to use with my articles. I knew about fair use, having seen the Trademark Blog, which uses images all the time, trademarks at that, and Google News, but I was so nervous reading all the copyright warnings and realizing Groklaw would make enemies, I felt I'd rather not rely on fair use. Who really knows what fair use is precisely, where exactly the line is? I had to be completely upright and well within all the laws. Let Google get sued and establish the line. They can afford it.

So I made it a practice to write and ask for permission. For example, I got permission from Tiki to use a drawing of a laughing penguin, and when SCO or their pals would say silly things, I'd throw the laughing penguin on the page with a small credit line, The Laughing Penguin by kind permission of Tiki. I still love that drawing.

Eventually, though, I gave up, because it took too long. By the time I got a response, it was often too late, because I was throwing up stories onto Groklaw so fast , at least one every day, that by the time I got permission, the story would be old news and no one much was reading the story any more. And it was hard to find the time, with the speed and pace of news stories back in the days when SCO thought their ship would come in if they just kept talking fast enough. It seemed more important to get that all on the record, so to speak, than to do graphics.

Then, when we first moved to ibiblio, we had to share a server and it was all we could do to keep our nose above water sometimes, when Groklaw kept getting slashdotted. Bandwidth was an issue. So I stopped. Plain text would have to do. I do think that it was a loss. Creatively, it was a loss to me.

And that in a nutshell is what Creative Commons licenses are good for, gentlemen. It saves you having to write to the copyright holder to ask what you can do with their image. He or she has already told you in the license, so it enables you to be creative on the fly, with no friction and no chance of offending.

As an author myself, I would never want to publish someone's creative work unless they wanted me to. It's a basic principle of ethics, even if there were no law. And there is a law. Copyright law is powerful, and I wouldn't want to tangle with anyone, even if I had no ethics. If the graphics I wanted to use were clearly marked as to what I could do, it would have been a creativity enabler.

Nowadays, a couple of years later, there is a graphics collection, The Open Clip Art Library, and anyone can use the graphics -- or contribute to the library. Here's Wikipedia's list of public domain images. Thanks to Creative Commons licenses, a lot of people now offer their photographs online too. Here's one place, Flickr, where photos can be uploaded and placed under whatever license you wish. You can search for them by tags, and you can create tags to help others find things by category, although I hope some brainiac helps them organize better in time.

Some of the photos only a mother could love, but some are really exquisite. Professional photographers upload their photos too. Here's one of my favorites, by Alberta Fifty, which I never would have seen without Flickr. If ever I wanted to do a greeting card, I'd contact her and ask for permission and pay her whatever she asked. Here's a page of recent photos made available on Flickr under a Creative Commons license. Now, some artists don't want to share, viewing intellectual property, as they like to call it, as property, just like a dog with a bone. Those who think like that view creative works as their meal ticket, and they want to extract every last dime, not only for themselves, but for their grandchildren as well. They are free to squirrel their works away in a hole in a tree, if they wish. And they can erect as many gates and pitchforks around it as they like.

They don't need them to protect their work from me, because I never take anything that they wouldn't want me to, but I understand not everyone is as scrupulous. I wish they were, actually, because then Hollywood and the RIAA might relax a little and not be so extreme, with their fantasies about how wonderful DRM will be. And that's fine, if they feel that way. It's theirs to hoard.

But when I started Groklaw, I wasn't interested in making money from it. No one would have paid me back then anyway. It was my hobby, my after-work-hours fun, and all I wanted was to get the ideas out there freely. The Creative Commons license made that happen. My articles are republished all over the world and I don't have to be annoyed with lots of email giving permission, because I have already given permission, blanket permission, for noncommercial use.

Why not commercial? It's simple. If anyone is going to make money from my hard work, I think it should be me. I do sometimes give permission anyway, but I don't wish to give blanket permission for any old commercial use, because I'd really hate to wake up someday and see "The Best of Groklaw" being sold on Amazon.com and all the money going to some exploitative jerk and be helpless to stop him. I'm the one staying up to 2 AM working to come up with all the content after all, not the jerk. It's my heart on the line, on top of that. It's just the principle of the thing.

There are exploitative jerks who mirror Groklaw on noncommercial sites just so they can use my popularity to draw attention to themselves, mainly to attack Groklaw and try to steal my readers. Ironically all they do is spread my ideas, which was my purpose in choosing the license. But it's not ethical. It's violative of the spirit of the license. But Groklaw continues to grow. People are not stupid. They figure out who is who eventually, and the wisdom of crowds kicks in.

Memo to SCO and Microsoft: people aren't as stupid as you think. Either that or your operatives aren't as smart as they think.

Flickr has a page explaining simply all the CC licenses too. You can use photos you find there to make collages, by the way, if the license allows derivative works, as long as you are not using the work for advertising, which is prohibited.

Some people see art in everyday things. Others create art from everyday things. And still others can build on the art of others. It's fun. And if there is a CC licence, it's seamless, as they say in the enterprise. Now, when I want to make money from my writing, which I sometimes do, I don't put it on Groklaw. And if anyone published it elsewhere without permission, I wouldn't like it at all, and no doubt the publisher wouldn't either. Using the CC license here is a voluntary decision, based on a purpose that may be difficult for Orlowski and Dvorak to comprehend, because their hearts are in a different place. But it's my free will decision.

As it worked out, I know Groklaw has brought me business, even though that wasn't my purpose in starting it. That's how the Internet works. It's something the RIAA needs to grasp someday. If people see your work, get to sample it, they do come to buy. It's like trying on shoes in a shoe store. That's not stealing. It's just making sure you like the shoes and they suit you before you pay good money for them. And what people are willing to pay for at the end of the day is you. They get to like you, your work, and once they see what you can do, they'll gladly pay you to do it some more or to do it just for them or turn your attention to writing on a topic you otherwise would not have. It's true. I've lived it. Giving my work away did not reduce me to poverty. It opened doors.

Why do people care if I want to release my work under terms more permissive than copyright, anyway, even if it meant abject poverty? Most artists lived in poverty through the ages, without Creative Commons causing it, and I don't recall anyone complaining. La Boheme is all about starving artists, is it not? It's my work, after all. I can do whatever I wish with it. And that's the bottom line, isn't it? It isn't Mr. Dvorak's business or Mr. Orlowski's business to try and stop me. Of course, they can write whatever they please. But perhaps they'd consider writing a column on why they feel the need to try to block Creative Commons if others like the idea? The "legal" reasons Dvorak listed are not based on reality, as Gratz points out, for the most part, so what is the real reason? No one is asking them to use such a license, so what is the imperative? Can you guys explain?

Meanwhile Creative Commons licenses are multiplying. There is now Science Commons and a subsidiary Open Access Law Program, which makes it possible for us to read online law journals. Here's the list of the prestigious participating law journals, which I hope you will make use of. That's why they are doing it. To spread knowledge and information. Some of us think that is a valid goal in and of itself.

Law journals, Mr. Dvorak, are using Creative Commons licenses and concepts. Do you think that should tell you something about the legal soundness of Creative Commons licenses? So, I took the time to answer your questions. Could you do the same and answer mine?


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