The Creative Commons as a default rule

by John Quiggin on July 20, 2005

Reader Ben Lancini points me to this piece by John Dvorak, attacking [or rather, confessing to not seeing the point of] the Creative Commons License. This has prompted me to write a post I promised ages ago, in response to Kim Weatherall and Nicholas Gruen. I won’t recapitulate the debate, but just state my own position.

I’ve chosen the non-commercial, attribution, share-alike version of the Creative Commons License for my blog. This says that anyone can reproduce my work from the blog, with attribution and for non-commercial purposes, as long as they share it under the same conditions[1].

I’ve chosen this, not because it’s necessarily the best option in all, or even most cases, but because it’s the best default rule. Anyone who wants to use material from the blog in this way can do so without asking me. And share-alike is a good feature for a default option, because it means that re-use is similarly free under the same conditions.

But if Hollywood wants to use bits of the blog in the forthcoming hit movie Crooked Timber of Humanity, they are not confined to the CC license. They’re free to fly me to LA, and make a stupendously generous offer for the commercial rights. Similarly, if someone wanted to use the posts without attribution for some good reason, they could always approach me and ask for permission.

More generally, if someone wants to do things differently they can propose a contract with me. The optimal default rule is one that protects most rights I might want to enforce, while allowing (without special permission) most uses I’d be unlikely to object to. Public domain fails on the first count, and standard copyright on the second. I think the Creative Commons License, in the particular form I’ve chosen gets the balance just about right.

The general idea of a default value is familiar to anyone who’s done any computer programming and I imagine that if things were put to Dvorak in this way he’d see the point.

The ideas I’ve associated with default rules are commonly, but not, I think, very helpfully, discussed in terms of the supposedly ‘viral’ nature of licenses, particularly in relation to software and the Gnu General Public License. The idea of a default rule clarifies what is going on here. You can only have one default. At one time this was public domain (since it was necessary to make a specific claim for copright). Now it’s copyright, and advocates of strong IP take this as normal and natural. But if you want to use GPL or CC material with a share-alike license you have to adopt this default. From the viewpoint of people who take copyright as natural, but see CC material expanding, this is like a virus.

fn1. Nothing I do with the license affects rights of fair use (not that these are very extensive in Australia, but this may change for the better).

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{ 20 comments }

1

goatchowder 07.20.05 at 6:06 am

Dvorak is a right-wing, corporate ideologue. And he loves to tweak the vanguard or innovators by enthusiastically siding with the established dominant powers. He’s like the computer-industry version of Bill O’Reilly.

2

bi 07.20.05 at 6:36 am

I confess to not seeing the point of reading John Dvorak’s article beyond the first paragraph. Actually, I confess to not seeing the point of John Dvorak’s very existence.

With “fair use” you can only copy bits and pieces of a work, you can’t copy the whole thing. A Creative Commons license allows you to copy the whole thing.

And where are the absurd lawsuits from authors who use Creative Commons licenses? I only see an absurd lawsuit from SCO who claims that copying the characters “int a, b, c;” qualifies as infringement. If anything’s threatening the currently “tenuous” fair use provisions, this is it.

Dvorak, please die now.

3

Luis Villa 07.20.05 at 7:27 am

The best part of the article is not the article, but the forum following, where Dvorak says:

“I do have the problem of writing more than I read — a hazard of the job.”

Back when I wrote regularly, reading more than we wrote was this old-fashioned thing called ‘research’. But I guess Dvorak things that is humbug too.

4

Luis Villa 07.20.05 at 7:28 am

Gah. thinks, not things.

5

KCinDC 07.20.05 at 7:43 am

People who write more than they read, or talk more than they listen, have an exaggerated view of their own importance. Give the rest of the world a chance once in a while.

Actually I doubt even Dvorak really writes more than he reads.

6

almostinfamous 07.20.05 at 8:26 am

that’s why my blog and all my flickr photos are CC-licensed.i believe its the same attribution-sharealike-noncommercial that you talk about and it is i think the most popular of CC licenses.

however, i think you are sadly mistaken when you say this:
I imagine that if things were put to Dvorak in this way he’d see the point.
having read mr Dvorak’s columns for a while, i dont see any way to get him to see A point let alone THE point. he’s just nuts…

7

Lisa Williams 07.20.05 at 9:07 am

Dvorak follows a tried and true method for getting traffic in the blogosphere: bitchslap someone with more traffic than you.

Having taken the effort to decide who will be the most advantageous to talk trash about, he fails publish often enough to build on the wave of traffic and capture readers as traffic. He comes out, says something calculatedly stupid, and then disappears until he decides he has to do it again.

8

nick 07.20.05 at 9:15 am

Dvorak is, indeed, no more than a troll with a regular source of income. He probably doesn’t believe any of the stuff he writes, but the people in the advertising department must love him.

9

Chris 07.20.05 at 9:29 am

Since you guys are attuned into the academic world, what are your thoughts on students using Creative Commons licenses as a tool for protecting their IP in light of recent scandals about professors using students’ work without attribution? (http://chronicle.com/free/v51/i17/17a01401.htm)

Would it be reasonable for students to release their papers under attribution-noncommecial-sharealike licenses in the academy? Is there something about the mentor-mentee relationship that this would complicate?

Thoughts?

10

wetzel 07.20.05 at 11:07 am

Would it be reasonable for students to release their papers under attribution-noncommecial-sharealike licenses in the academy? Is there something about the mentor-mentee relationship that this would complicate?

I think this would go against the 1000 year tradition in common law that students have no rights whatsoever.

By the way, John, I am very grateful that you made this post. I did not know about creativecommons.org.

I’ve been working for years on a project for high school and undergraduate science education, which will be launching as a business soon, and creative commons gives me a clear, understandable way to communicate my intellectual property position. It will save me a lot of lawyering.

11

Tim Rutherford-Johnson 07.20.05 at 11:12 am

Chris – if work is used without attribution, that’s plain wrong, CC or no, so I’m not sure how it would help. But, in my (limited) experience of such matters, in the UK at least copyright in student work submitted as part of university assessment resides with the institution, not the student, so CC licensing wouldn’t even be an option for them.

The funny thing about Dvorak is that if he bothered to actually read Lessig or the CC site properly, he’d realise he and Lessig are actually on the same side here regarding protecting both fair use and author’s rights.

12

Luis Villa 07.20.05 at 1:42 pm

Tim: that’s mostly how it works in the US as well, though I think that will change in the not-too-far future; there are high-school students coming up who are aware of the IP law issues behind CC and GPL and will push to actually own (and share on their own terms) their own information.

wetzel: you need to look into the Science Commons project ASAP. Also, stop everything else you are doing and purchase and read everything Lessig has ever written. I’m only slightly joking- if you’re trying to get into an IP-related business, but haven’t read Lessig and/or understood Creative Commons, then (frankly) you’re woefully under-aware of some of the major trends across every IP-related industry.

13

Alex 07.20.05 at 2:42 pm

The general idea of a default value is familiar to anyone who’s done any computer programming and I imagine that if things were put to Dvorak in this way he’d see the point.
I’ve contributed to several long-running message board threads about how much John Dvorak is an idiot. His grasp on any technology beyond the user’s perspective is very, very slim.

14

Pat 07.20.05 at 3:16 pm

Dvorak is correct in his point that creative commons does nothing that ordinary copyright does not already do.

This is because the creative commons documents are entirely contained within the present copyright system.

I’m perhaps not being clear…

When you write something, you have copyright. That copyright gives you ALL rights of distribution, etc, except for those considered fair use. You may, however, choose to surrender these rights.

Creative commons is just a formalized designation of which rights (out of the whole which you own) you are surrendering.

You could already surrender that set of rights voluntarily, without the creative commons tag. The creative commons tag just signifies which rights you are surrendering, and provides a link to the written document explaining this.

The alleged benefit is the same as you get with any form contract. If lots of people use the same form, people can become familiar with it, and the need to write a new form every time you make a new contract is avoided. That’s all creative commons does.

That, and provide a signifier for people who like to “fight the man.” But that’s more a sociological point.

15

John Quiggin 07.20.05 at 5:20 pm

Dvorak used to write a “contrarian” column for MacUser years ago, but I hadn’t seen anything of him since, unlike a lot of posters here.

Still, I am trying to cultivate a non-aggressive attitude to blogging, so if I’ve been too charitable to Dvorak, I’m not going to apologise.

16

almostinfamous 07.20.05 at 5:51 pm

umm pat, if you read the 2 pages worth of his pointless rant you can see that at the very beginning he thinks one has to sign up with creative commons in order to use it.. which i dont know how he got the idea and kinda wrecks the whole thing from there onward.

the problem is not that he isn’t seeing the point, he maliciously does not want to see the point of CC or anything that eases large-scale content production

17

Jack Lecou 07.20.05 at 6:29 pm

Pat: Dvorak is correct in his point that creative commons does nothing that ordinary copyright does not already do.

Sure, he’s technically correct, but that statement is a lot like saying that steering wheels do nothing that “ordinary automobile controls” do not already do.

It would be one thing if he were merely clarifying how CC licenses fit into the copyright system for readers who aren’t familiar with the details of how it works, but in context it just betrays an incredible level of ignorance (feigned or otherwise) on his part.

You and I can see that the benefit of CC licenses is more or less about standardisation, why can’t he?

18

Jack Lecou 07.20.05 at 6:37 pm

Incidentally: I’m given to understand that public domain attributions are actually somewhat tricky to get completely right, especially factoring in differences from jurisdiction to jurisdiction. Creative Commons: Public Domain isn’t nearly as gratuitous as it might appear.

19

bi 07.21.05 at 6:07 am

Creative Commons licenses are form licenses all right. The nice thing about form licenses, I suppose, is that one just needs to closely study a single license to be able to determine one’s rights for a large number of works.

And I still sustain my point that the talk about “threatening fair use” is complete hooey. Why worry about Lawrence Lessig when we already have the SCO vs. Linux circus?

20

wetzel 07.21.05 at 11:24 am

if you’re trying to get into an IP-related business, but haven’t read Lessig and/or understood Creative Commons, then (frankly) you’re woefully under-aware of some of the major trends across every IP-related industry.

luis, thank you for replying to my post, although I think you might be inflating the relevance of creative commons and Lessig’s work to what it means to be prepared for IP business. Progress in business occurs through activities that get you closer to shipping to paying customers. Open source and creative commons are definitely beneficial to business in many ways. PHP, for example, is one of the greatest things ever created. Nevertheless, these matters are not central to business planning for most companies.

Although the Science Commons project is interesting, it does appear to be concerned more with the standards of intellectual property within the academic research community than with providing means to share educational content, and I am not aware of a major educational publishing company that takes this type of approach with its content, although if it were to become standard, that would have many benefits for human development. It would sure make Wikipedia a lot better.

In my company, we would like teachers and students to feel free to produce derivative works. We don’t have a problem with people downloading, sharing, producing, etc, as they are not trying to make a profit off our labor. We made our works because we want the world to change. Basically, the more people who learn science the better.

As I said, Creative Commons gives us a way to do what we were going to do anyway. It gives us an easy way to handle the legalese and an easy way to represent the decision as a marketing feature, so I am happy to learn about it.

Though I don’t feel like I was lost and now am found.

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