CC-NC considered harmful

I just left the followiing comment on a Creatice Commons blog thread debating the NonCommercial and NoDerivatives options:

I speak as founder and President Emeritus of the Open Source Initiative. The NC option in Creative Commons has always been a bad idea and should be removed.

The reasons it should be removed have nothing to do with any of the deep philosophico/political positions usually argued in the debate, and everything to do with the fact that there is no bright-line legal test for “commercial activity”. This ill-definedness is reflected in community debates about whether commercial means “cash transactions” or “for profit”, and it is the exact reason the Open Source Definition forbids open-source software licenses from having such restrictions.

The founding board of OSI, after studying the possibility, judged that an “NC” option in open-source licensing would create too much confusion about rights and restrictions, too many chilling effects on behaviors we did not want to discourage, and too many openings for vexatious litigation. What is only a source of contention within our community could prove very damaging to it if unsympathetic courts were to make even mildly adverse rulings.

I have seem no reason to change that judgment, and I think it applies with equal force to Creative Commons. The NC option is a dangerous trap and should be removed.

183 thoughts on “CC-NC considered harmful

  1. If Nina Paley cannot convince them, who can?
    http://questioncopyright.org/minute_memes/all_creative_work_is_derivative
    http://www.youtube.com/watch?v=jcvd5JZkUXY
    (she has preached to drop NC-ND for years now)

    I have seen scores of podcasters first add a NC-ND clause, “just in case”. Then after a talk with Nina, they have a lot of work to do to remove it from their earlier postings.

    NC-ND prevents the very things you would want to have a Creative Commons for.

  2. I use Creative Commons primarily for photography. Most of them are Attribution only. I’ve used NC when I’m taking photographs somewhere that has a non-commercial restriction, like a sports event. It’s probably not necessary, since the responsibility of the person using it to clear ALL the rights, but it’s a message.

    The “no derivative works” one is the clause that makes me wonder why something was CC licensed to begin with. When I see something like “Attribution – Non-Commercial – No Derivative Works” I start to wonder why they even bother. So, I can make a copy and give it to my friend, I guess? My friend who could probably just download it from you in the first place, since it’s most likely “free as in beer”?

  3. I have less heartburn with ND than I do NC. The ones who would use NC are generallt High Artists won would not dare profane themselves with such things as actually making money, and they want the world to join them. ND’s a bit more reasonable. For example, Wil Wheaton generally releases his writings ad Attribution-ND. If someone could modify it, they could turn Wil’s words into those of a conservative, and that would be a gross misrepresentation of his beliefs.

  4. Well, if you’re specifically trying to attribute something made-up as coming from Wil Wheaton, I think that would be more along the lines of libel or slander than a copyright issue. I’m sure you could selectively quote him as part of a larger pro-conservative piece, but you don’t even need a CC license for that as it would fall under fair use.

  5. @Jay Maynard
    “The ones who would use NC are generallt High Artists won would not dare profane themselves with such things as actually making money, and they want the world to join them.”

    That is not my impression at all. The NC clause is used indiscriminately by people and employers that are afraid someone else might make money off their creation without giving them a share.

    The ND clause is as bad (or worse). All creative work is derivative (see links in my previous comment).

  6. I think you’re wrong, tactically. I have no love of -NC and would like it to die, and it really needs to be stopped for anything to do with science, software or education. But I don’t think we can kill it entirely just yet, because it’s too tied into culture, because out in the big world, almost no-one shares by default, and -NC still has considerable evangelistic value. Extended blog rant.

  7. All my kids soccer pictures are marked CC-BY-SA-NC. That allows parents and kids to make a collage of images for calendars, school projects, christmas cards, etc. This prohibits Addidas from using pictures of our kids in ads without our explicit permission like they could under just CC-BY (at least not without threat of lawsuit). And without depending on privacy rights that may or may not exist.

    See Chang v Virgin. (http://www.nytimes.com/2007/10/01/technology/01link.html)

    Fuck you if you don’t understand why this is important to parents. No, seriously, that isn’t your usual internet bravado “fuck you” but an I’d say it to your face, totally sincere, “FUCK YOU”.

    I hate extremists that have to screw with something useful to make it fit their tiny little world view.

  8. David, that’s an argument that the Stallmanite-equivalents in the artistic world need to get a clue. You won’t catch me disagreeing that they do, but just as with the GPL, it’s long past time to stop pandering to them.

  9. NC is often used by ‘almost-open’ source hardware designers. Examples I’ve come across are a pyrolitic gassifier and a variant of the RepRap control electronics (Gen7).

    It appears to be justified mostly on the basis of “I spent a bunch of money developing this design and I don’t want someone else to come along and make money manufacturing from it (without paying me)”.

    Now, as I write this, it occurs to me that AIUI the licence doesn’t actually do that (confirm/deny anyone?). But that’s the intent. And that’s a widely held (mistaken?) understanding in various open source hardware communities.

    I’ve argued against doing that in various places, but I don’t know how much progress I made.

    Hardware is more expensive to develop than software, and funding that is a problem many wrestle with. It seems to me that Kickstarter et al are the best solution we’ve found so far. NC restriction is more closed than open for hardware: the multitide of of small commercial outfits are one of the main engines of growth in RepRap.

  10. Jay – as I said, just declaring it so won’t make it happen. If -NC is removed, they’ll just go all-rights-reserved. I think keeping the idea of sharing around is an improvement on that. And, as I note in the blog post, Internet folk culture tends towards ethoses of “give credit, let others share in turn, do it on a noncommercial basis” – which just happens to add up to by-nc-sa.

    That -nc turns out to be fractally complicated when you actually look at it, and that it’s basically a solution to first-world problems that causes serious troubles outside there, doesn’t change that.

    The other reason for noncommerciality is that culture as it’s actually practiced these days is a string of copyright violations, and not taking money increases the chances of being allowed to keep doing it. And with much Internet folk art, tracing the copyright is just stupidly unfeasible. Copyright doesn’t encourage culture, it blocks it by claiming ownership of the building blocks of thought. But fixing that has to wait to severely trim copyright, which is a rather bigger problem.

    I’ll note again that I’m far from certain on the correct course of action here, but I don’t think the above observations are incorrect.

  11. I seen non-commercial restrictions for years. For example near my house there is a federal dam and lake where the guidelines for various approved activities using the facilities makes a distinction between commercial and non-commercial use.

    Are you saying that in the United States court system haven’t defined a line between non-commercial/commercial activities. Because I find it hard to believe that people and organizations didn’t try to game these type of regulations and would up in court about it.

    You live in Pennsylvania, as do I, if you look at the guidelines for the use of state parks the distinction between non-commercial and commercial is littered all over the place.

    Note I am not debating whether the distinction is a good thing. Only whether there is a legal line or not. I am thinking there is.Which means it is within the rights of a copyright holder to craft a license based on that line.

  12. Note also I despise the non-commercial option of creative commons license. Orbiter Space Sim (http://www.orbitersim.com) is a great free space simulator with a great add-on system but the main developers, and half of the add-on developers (I am not one of them, http://www.ibiblio.org/mscorbit) have a bug up their ass about commercial use. Orbiter flourishes in spite of that but it would be a lot better if it was completely open.

  13. I’m reminded of the store where someone put a picture (of someone else) on the web, under a CC licence, and then the picture was picked up by an advertisement firm that used it on some big billboards.

    That might be something you want to prevent; not so much because the advertisers are making money of it but because it’s a kind of use you don’t really appreciate. CC-NC would have been the easiest solution to fix that.

  14. Nigel – your problem is that you are using the wrong license. Creative Commons, which I have spelled out in full on purpose, is to put things in common. You probably do not have the goal of putting these pictures in common, as in, the entire human race. You are probably looking for something more like transferring rights specifically to the people involved in the pictures and not giving them transferability themselves. What you’re looking for is probably for your friends and their kids to do anything they want, but you probably aren’t looking for somebody in another state to be making collages of your kids. (I infer the latter from your invocation of “the parent filter”. Try running that past a few of the parents and I’m sure they’ll all recoil at least a little.)

    Nothing you’ve said is even related to Eric’s point, which is that non-commercial is simply ill-defined. The solution you should be looking at is to fix up what you’re using to be really what you want, not getting angry about licenses not including ill-defined terms, which could very well hurt you in the future.

    You’ve come perilously close to a “won’t somebody please think of the children” comment there.

  15. I remember how, some years ago, I was able to download and use an NC version of Cincom’s Smalltalk package. It was really fine, and I used it with great pleasure. I never developed anything saleable with it, but if I had, I could just pay the fee and go to market it. Seems like a sound and equitable business arrangement.

  16. Don’t worry about ESR’s concern trolling here. He is clearly peddling his own agenda and worldview while hiding behind the fig leaf of terms being “ill-defined”. If that is really the case, the solution is to bring better legal definition to the fore, not to give up. Suggesting to just give up is a clear sign of an ideological agenda, and in this case an idiotic one.

  17. The phrase “bright-line legal test” is a bit of an attractive nuisance for us hackers and geeks. The phrase might appear in legal documents, but legal people understand it to be only one factor among many in determining the outcomes of legal proceedings. We see the phrase and assume it was carved on a tablet by Hammurabi. We imagine that if we’re just creative and smart enough we can partition the set of human actions in just the right way to reform society completely to our preferences. Thus we’re tempted to see the “not a bright line” criticism as a fatal flaw for a licensing scheme.

    It don’t work that way. One may win or lose at trial for any number of reasons. Uses seen as “fair” by one court on one day are seen as infringing by another court or the same court on a different day. Outcomes hang on jury selection, jury instructions, evidence rulings, the expert witnesses various parties can afford, etc. Every point a litigant can raise in her favor has the potential to turn the case. Which would be harder to explain to a jury: NC or SA? I’d bet most jurors and judges would understand NC as soon as they heard the phrase, while many would be incapable of understanding or accepting as valid the purpose of SA after any amount of explanation. I mean, we still see soi-dissant software developers complaining about the “unfairness” of the GPL, for goodness’s sake! If a creator goes to court to enforce her rights, why should CC seek to limit the weapons she has at her disposal?

    NC also has uses before the nuclear option is invoked. As an example, because it is easier to understand than SA, it communicates to nonexperts more clearly when they step over the line. This is important for content users small and large. One might imagine that large organizations only make the legal mistakes that their smartest lawyers will make, but in reality they make every mistake that their dumbest nonlegal employee will make. We might not be able to prevent theft by a person or organization who doesn’t mind stealing, but we can at least try to help those who are trying to do the right thing.

    By all means, advocate for creators to eschew NC. Encourage those who use NC to consider it a fallback mechanism only, for when they cannot enforce BY or SA. Removing NC entirely, however, makes CC a less valuable tool for creators. Besides which someone will just fork CC so you won’t accomplish anything anyway.

    I admit that I really don’t see the point of ND. If a creator wishes to prevent derivative works, there are any number of old-fashioned licenses she can use for that purpose. However, the arguments I’ve made in support of NC seem to support ND as well. I’m not sure what I think of that.

  18. Non-Commercial is something hard to define, true, but I think it’s one of those “I can identify it if I see it” thing. Yes, each case depends on its own facts. I think NC is a reasonable restriction for creative works.

  19. “I admit that I really don’t see the point of ND. If a creator wishes to prevent derivative works, there are any number of old-fashioned licenses she can use for that purpose. However, the arguments I’ve made in support of NC seem to support ND as well. I’m not sure what I think of that.”

    As far as I can tell, by-nc-nd is the very merest dipping-one-toe-in option to make something shareable without prior permission. I have spoken to people who consider by-nc-nd to constitute radical openness – in the context of asking how they could get pictures into Wikipedia. This is the sort of thing that leads me to thinking we have a long way to go in encouraging sharing in the wider culture.

  20. @Robert Conley – No orbiter sim would not be better as an open source project because Dr. Schwieger wouldn’t have released it nor worked on it for the last decade since that’s not what he wants. The open source world is littered with dead projects because the primary dev lost interest and left and no one picked up the reins. There are probably a dozen derelict space sims on SourceForge as we speak under GPL.

    In what way would it be better? Do you believe that there is some uber contributor out there that avoided OrbiterSim because it’s freeware rather than open source?

  21. Pingback: Ce que pense Eric Raymond de la clause NC des Creative Commons (pas du bien) | Dico Micro

  22. I understand SA-ND. You are not looking to make money but want control of an idea. There are parts of my book which are SA-ND. You can use my ideas, my diagrams, my language… as long as you don’t change them at all. No input from 3rd parties in a way that their ideas could end up attributed to me. I don’t consider that an open license at all though. It is a commercial license with restrictive terms for use and a low compensation scheme.

    As far as NC that’s more interesting. NC was an alternative direction open source could have gone. Linux was under a NC license, QT was under an NC license. I agree with Eric that’s a substantially more tricky license for people to use. They are going to need to be very careful and I think it might make sense to work hard to keep NC separate in people’s mind from open source. Lots of people doing what they think of as innocent stuff could lose lawsuits under NC.

  23. @jeremy – No, my problem is that I am using the RIGHT license to do what I want to do and some ideological purists are trying to make it go away. The intent of NC is clear to most people despite some legal nuances, it is widely used and is a common standard.

    And no, putting things in to the commons is not only to put it out there for anyone to use without limit. Historically many commons are managed by the community or residents around it. Even today, as Robert pointed out above, our state parks and federal land commons have clear distinctions between non-commercial and commercial use of the commons.

    I am not looking for something else, nor do I not understand the commons. Do not be so arrogant to presume that because folks do not agree that they do not understand. I understand very clearly that CC-BY-SA-NC is not perfect, that there are potential legal gotchas (minor in my opinion and all licenses have potential issues) and it serves the purpose of allowing me to share my photos in the Flickr and Facebook commons for folks to reuse and remix while avoiding the Chang v Virgin scenario. And no, I don’t care if a kid in another state uses the photo in some school project.

    Folks that want to get rid of the NC option have zero desire to provide a usable community alternative if it is removed because it completely goes against their desire to force their petty little worldview on everyone else. And the have the gall to claim it is for “liberty” and “freedom”.

  24. So we’re allowing people to make money by using our software without paying, just because it might be confusing when they’re making enough money that it’s worth it (or even legal) to sue them? No thank you, NC option for me.

    Not only are they using unpaid manhours and equipment it took to write and host the code, it probably also took a great deal of personal investment to learn how to do whatever the code does. If they are making profit that is fine, but be fair and share a small part. (And yes, I really would ask only a small part or perhaps even only credits – it’s open-source after all and they’re honest enough to contact me – but that’s something entirely different from free.)

  25. @Nigel I am well aware of the need for proper motivation to see a project through. That it varies from individual to individual. However because Orbiter Sim is closed source it means that if something would have to Schwieger the project is dead. If something was to happen to Schwieger motivation for OTHER reason the project is dead. Everybody who enjoy Orbiter and whole put hours into making add-ons is at the mercy of Dr. Schwieger. Don’t get me wrong he is a great guy and his generosity deserves all the thanks we can heap on him. However still should any community existence be at the mercy of one individual no matter how noble. Personally I wouldn’t want that one me which is I released everything I did (A complete simulation of the Mercury Space Capsule and other add-on) under the BSD license.

    On the technical side there were several bugs and issues that would worked out better if it was open source and Dr. Schwieger was comfortable in dealing with contributions. The only reason parachutes worked was a quirk in how his simulation of lifting surfaces worked. It broke every other release and I had to pressure to get it fix otherwise my historical space capsule add-ons wouldn’t work anymore. There were issues with backwards compatibility that probably would have played out better with more eyeballs on the code.

  26. ” It [CC-SA-ND] is a commercial license with restrictive terms for use and a low compensation scheme.”

    And this is exactly what a lot of people want a CC-NC license to be. Or to put it another way, they don’t want to “open source” their creative works; they just want to expand “fair use” of their works to what they think fair use should be, as opposed to the crabbed version that exists under current copyright law.

  27. Just wondering: for those of you who oppose the NC restriction (as I do): do you believe the FSF is right when they allow BY and BY-SA for non-software, non-documentation works but BY-ND for works of opinion, as shown on http://www.gnu.org/licenses/license-list.html?

    I would think that an NC license should only be used in a private setting; that is, it is exclusive to a specific group of people and is not intended to be seen by a general public or to be sold to a general public by anyone that has a copy of the work, and they take steps to make sure that it remains a secret. That way, if it is leaked to someone unintended to have it, no one is allowed to profit off of it without their consent: the information flows without an improper cash flow.

    When you release something publicly under an NC license, that is simply giving the people a giant middle finger to the action of monetary transaction for said work: “Sure, you can have it, but you have no right to do exactly what you will within reason.” Even for people who reject physical parallels with digital information, this implies lack of ownership, lack of possession on one’s memory storage medium. That is precisely when it is wrong.

  28. @Nigel – In what meaningful way would the cessation of NC being an official part of CC would that take anything away from you? Couldn’t you simply use the exact same license? What are you losing? I also am a parent and understand the need to keep the kids away from creeps. That’s not what I see is at issue.

  29. Yes, let’s remove *options* because we can’t trust people to understand what they are signing up for. What’s next? A passionate defense of statism?

  30. @TMLutas – there are several negatives: The license would cease to be supported by the CC community and fall behind current legal understanding of IP law. The use would be curtailed because it’s no longer part of the commons. The commons community shifts even further toward IP radicalism and away from practicality and makes the community smaller as a result.

    What would you lose if the FSF decided to drop LGPL as part of the GPL family of licenses?

    What do I lose? Perhaps nothing. I’ll just mark everything as “all rights reserved” vs CC anything or simply stop posting pictures.

    What do you gain by dropping NC? Ideological purity?

  31. I’ve always objected to the myriad of options in the Creative Commons licenses. My own experience discussing the licenses with clients who are both creators and consumers of IP is that they get easily confused on what are and are not permissable uses of the licensed material because of the many variations.

  32. I always thought that the whole mindset that would settle for a license that essentially imposed a “my software is free for use, but you’re forbidden to make money with it” was kinda shallow, fraudulent and petty.

    If you want to open your code to the world, do so and get out of the way. Be proud of what you have contributed and let others carry the ball farther afield. To me, the most honest open source license is a ‘public domain + liability disclaimer’ license.

    If somebody else has the insight and drive to take something I write and somehow transform it into a viable commercial product, great! Kudos to them. They expended effort – that I did not – in modifying/combining/packaging my code to produce something new….something someone wanted to pay for. I would, of course, contact them and offer my services to improve/support the product and make some money myself – indeed I would include a note with the code to this effect.

    To resent their success to the point of trying to prohibit it smacks of typically spiteful, lefty envy.

  33. @ESR @Dan

    My first reaction to the title of the post was:

    Ethyl-Methyl-Amine considered harmful?

    Well, yeah – low molecular weight amines are generally toxic.

    (I got into chemistry 40 years ago; I have only been into the Internet for about 14 years.)

    Then I remembered where I was and realized what this was about.

    Am I the only one old enough to remember this…. I can’t believe that I can be the first to point out that you are getting a lot of:

    “CC-NC considered harmful” considered harmful

    However, I completely agree with Dan, above. If I put something up for people to use, and they find it useful, I have added to the wealth of the world. If someone can make money with what I have done – great – I have really added to the wealth of the world (in a small way, usually).

    I have believed this for a long time.

    In 1999, I wrote an article that the Linux Journal wanted to publish (with a name I derived from ESR’s blockbuster, of course) called
    The Cash and the Calling about using Open Source AI parts in closed-source applications. Unfortunately, I had “published it on my website” so they felt that they wouldn’t be getting First Serial Rights so it was published for free in the Linux Gazette.

    In 2000, I wrote
    The Generation Gap about Open Source code in closed source applications. (I used the term “component” to mean a relatively small piece of code, but the term confused some people and detracted from what I was trying to say. Having learned my lesson about publishing, it was published in the Linux Journal (online part because of getting it to them in the last minute) and I got paid!!.

    So… If you are willing to help people, why aren’t you willing to help them make money?

    I recognize that photos of your kids are a bit different than software, but still.

  34. I recognize that ESR’s point is about fuzzy lines, not the merits of “people using my stuff for free”, but that subject has been raised.

  35. Brian, I would argue that the fuzzy lines are the result of fuzzy thinking, and that the former cannot be dealt with without dealing with the latter.

  36. Brian, I would argue that the fuzzy lines are the result of fuzzy thinking, and that the former cannot be dealt with without dealing with the latter.

    I don’t know… it is like the GPL… so many people feel so strongly about it and I basically just don’t get it.

    Regarding CC… If you don’t want people to use your work, put a regular old “All Rights Reserved” copyright on it. If you want to let others have a chance to benefit from what your have done, let them do so. You don’t want them copyrighting the original from you or implying that they created it, but… if someone wants to use your work or someone wants to make money to make money… I just don’t see what the big deal is.

    To me, the important aspect is related to why I use a slightly modified MIT license on my Open Source software – I want…
    – people to use it, and,
    – recognize that I have something good to offer, and,
    – give me lots of money.

    So far, I don’t know much about the second point and the third point hasn’t happened.

    But the primary aspect, here, is that we all want to see Open Source and CC to grow. This will happen fastest if the license doesn’t scare people off.

  37. I am more familiar with this from the GPL and software side than the CC side but….

    With GPL 3.29 -
    There is nothing like a license that has 9 pages of restrictions and rules to make you free, plus a Quick Guide, FAQ, etc to scare any business to the point that they wouldn’t dare use GPL’d software. Is that what FSF people want? Don’t they want to have the use of their software spread, particularly from basically developers to the world at large?

    In my opinion that is the tragedy of GPL.

    And please don’t tell me how free I would be. I wouldn’t use anything (except possibly a nuclear submarine) that has 9 pages of rules and restrictions under the guise of making me “free”.

  38. @Nigel:
    >What do you gain by dropping NC? Ideological purity?

    From Eric’s comments in the OP, I think he may be more afraid of what may be lost by keeping NC.

    I can see how there would be the potential for the invalidation of a non-commercial license by the courts to cause significant PR damage to an organization that either maintained or endorsed the license (such as CC or OSI).

    PR damage among the general public would have the potential to make people leery of using other licenses associated with that organization.

    PR damage among the legal profession could bias lawyers and judges against otherwise sound licenses.

    My reading of the OP Is that Eric thinks that CC-NC is on shaky enough legal ground to endanger the rest of the CC licenses in this manner, and that the OSD excludes non-commercial licenses to avoid exposing the OSI, and open source in general, to that kind of risk.

    Is that more or less right Eric?

  39. >Is that more or less right Eric?

    Yes. Those are second-order effects; there’s a first order one, too, which is that NC exerts a substantial chilling effect on worthy uses of CC material by creating legal uncertainty about the permissible ways to use it.

  40. @esr:
    >there’s a first order one, too, which is that NC exerts a substantial chilling effect on worthy uses of CC material by creating legal uncertainty about the permissible ways to use it.

    But I’d think that that would apply mostly to CC-NC material and not CC material in general. Unless you think that a significant amount of CC-NC material would end up under other CC licenses rather than all rights reserved if CC-NC didn’t exist.

    In any case, how much would it reduce both the first and second order effects to keep the NC license, but fork the CC organization, with the half maintaining the non-NC licenses keeping the CC name and the half maintaining the NC licenses taking a new name?

  41. Brian –

    How are your arguments different from those raised against the GPL 2 in the 1990s? GPL 2 was a vastly more complex license than the MIT, BSD or public domain licenses that it replaced. The reason for the complexity is because it is trying to accomplish something more complicated than the BSD or MIT licenses. The GPL3 is trying to accomplish something more complex as well.

    As far as business using GPL3 software. Business can use pretty much whatever they want. The vast majority of businesses don’t do anything proprietary or interesting with the vast majority of their code. The complexity mainly exists only for those companies that sell software or software related services. And yes the GPL3 does make their lives more complex, if they want to be semi-open. That’s the intent.

  42. Brian – I appreciate your objections to the GPL, but observably it’s been hugely successful, has stood up in court repeatedly and almost everyone uses it without trouble. So it works in practice, but you’re claiming it doesn’t work in theory, and that this is important. I would suggest that if you are surprised and outraged by reality, it’s not reality that’s wrong.

  43. >But I’d think that that would apply mostly to CC-NC material and not CC material in general.

    No. Consider the case of CC-NC material embedded in larger collections of CC or open source material.

    This isn’t a merely theoretical case. I know of a project that planned to release a for-pay iPhone port in order to raise money for development costs, and had to scupper the plan because of CC-NC material in its artwork.

  44. esr – mm, maybe. But not all values of “works” can be conflated, nor all theories that say it fails to “work” in some manner. Brian’s theory implies the GPL is so deeply broken it couldn’t possibly work at all, and that conflicts sufficiently with observable reality that it’s reasonable to question his model of the world that came up with a theory of that quality.

  45. Most of the “aims” people give for choosing NC are already covered by SA.

    Think of it. Some “evil” company wants to profit from your work by incorporating it in a commercial product. SA will make that product CC-SA. A movie including a CC-SA clip becomes CC-SA.

    So, either everyone benefits from this new derivative, or the company has to contact you for a special license to close up the product.

    If the commercial use does not require an SA license, say, paid downloads, then it is just distribution. Why block that with NC?

  46. @ CD-Host

    I am not sure that I understand your question. I feel exactly the same way about GPL 1 and GPL 2 – I only mentioned GPL 3 because it is the latest version.

    @ David Gerard

    My point should be clear by now:

    Obviously the GPL works fine.

    I just think that it is silly and chilling to have page after page of rules that are intended to make me “free”. They don’t. If you want free, you use something like the MIT license – now that’s free.

    The old “free as in speech, not free as in beer”, as expressed in the first amendment to the US Constitution, which, in addition to free speech covered:
    – freedom of religion
    – right to assemble
    – right to petition the government
    is expressed in 45 words.

    I suspect that the set of the folks that are adamant about no one using their work for a commercial activity has a large intersection with the folks that don’t understand the concept of sunk costs.

  47. Brian – your actual words were: “Don’t they want to have the use of their software spread, particularly from basically developers to the world at large? In my opinion that is the tragedy of GPL.”

    And yet, GPLed software is everywhere. Your phone runs on GPLed software. Your television runs on GPLed software. That’s the claim that’s ludicrously at odds with observable reality.

    I appreciate you don’t like it, but that’s actually a different thing from the licence failing at its aims or at spreading.

  48. @ David Gerard

    And yet, GPLed software is everywhere.

    Yes, of course. It is quite wild, actually – practically any electronic display of anything is done via GPLed software. It know nothing about this, but it might be the case that a Linux geek has more computers running Linux in his car than in his house.

    In any case, back you your point….

    I expressed myself poorly. I apologize. I was thinking about Linux on the desktop. It is cute that the picture frame that cycles through a set of images has a Linux kernel buried in there (or so I am told). But Linux deserves better than that.

    Windows 8 has pissed off many people; many others (including many businesses) aren’t pissed off only because they plan to never use Windows 8 at all. Businesses and many people still want desktop computers. Linux should be at least be a major player in filling the gap.

    After doing a little research, it seems that there is very little interest in Linux on the business desktop. I would think that this is at least partly because Linux and the majority of software that comes in a distro has a license that has 9 pages of rules and restrictions. Businesses don’t want the legal uncertainty that comes with that.

    I may be wrong about that. We will see.

    Right. Sometimes I express myself poorly and sometimes I make mistakes. When I recognize this (sometimes with the help of people like you), I admit it.

    I think that the GPL and the CC-NC is at least partly “I can’t or don’t want to make money from this, so neither can you.” I think that this is a silly/borderline-childish view (not counting photos of your kids).

  49. As far as I can tell, the reason Linux has no desktop traction is fundamentally that Microsoft has held onto its desktop monopoly for grim death. The year of the Linux desktop was 2007, when cheap netbooks appeared and Microsoft actually had effective competition for the first time and had to drop XP licences to a reported $0-$5. Microsoft and Intel soon killed the entire sector, and Microsoft got one of its Taiwanese hardware partners to publicly apologise for displaying a Linux-based system. All of this was widely covered at the time. It was nothing to do with the GPL nature of the software.

  50. Brian,
    If it’s GPL that scares businesses away from using Linux on their desktops, it would also scare them away from using Linux on their servers, wouldn’t it ? Same license, after all.
    Use of GPL’d programs is pretty much “do what you please”. It’s the (re-)use of the source code that is somewhat limited, and it’s that what could scare software development businesses away from using that source code in programs they intend to sell or otherwise distribute.

    >I think that the GPL and the CC-NC is at least partly “I can’t or don’t want to make money from this, so neither can you.”

    GPL is a “share alike” license, not an NC license.
    Redhat isn’t exactly not-for-profit, is it ?

  51. >After doing a little research, it seems that there is very little interest in
    >Linux on the business desktop. I would think that this is at least partly because
    >Linux and the majority of software that comes in a distro has a license that has
    >9 pages of rules and restrictions. Businesses don’t want the legal uncertainty that
    >comes with that.

    Linux in business is mostly held back by a lack of quality office software. OO.org doesn’t cut it.

  52. @ KN

    Man, I don’t normally realize I am wrong this many times in a day and I haven’t even had lunch.

    Re: Linux Servers
    Of course, you are right… basically. There is much precedent for Linux servers and no one has had any legal trouble. Things are more wild and woolly on the desktop, but few of the people that screw around with their computers at work are doing so at he source level. Which means GPL has little to do with Linux on the desktop directly.

    As you point out, the GPL does have a chilling effect on software developers. Linux seems to come with so much software that a person like me could wonder: who could want more? But, I am not typical – I am a computer geek, a hacker. Businesses need business software, which, beyond the Office software, isn’t Linux’s strong suit.

    Businesses also need custom software, and I would think that the GPL would have a chilling effect on that sort of development (internal or external) as well.

    GPL is a “share alike” license, not an NC license.
    Redhat isn’t exactly not-for-profit, is it ?

    Yeah… partly I was thinking of the CC-NC situation, partly I was mistakenly sort of assuming without really thinking that this applied to the GPL and partly I was thinking of the chilling effect on software development.

    OK… I don’t like the GPL, but many folks do. The same thing seems to apply to CC-NC. Both are potentially bad for new projects unless everyone is cool with the GPL and/or CC-NC.

    Back to the original topic of this post, CC-NC has an effect of for-profit projects/ventures not getting the benefit of the material. Each instance of this has a very tiny effect of preventing or reducing the amount of wealth being created in the world. Integrate all the cases of this over time and the world is poorer from the direct effect of CC-NC and the perceived risk associated with the complexity of CC-NC and the GPL.

  53. @ tmoney

    I can’t really comment – I use office software at such a simple level that OOo and Libre Office seem fine to me.

    I recognize that Microsoft Office is much more integrated with some of their other software.

    I have two comments:

    (1) That integration comes at a cost in the form of malware taking advantage of the integration.

    (2) Linux would have more and better software if it were not for the chilling effect that the GPL has on software development (internal or external). This isn’t an issue for a stand-alone app, but once you start integrating…. fear of the GPL starts to creep in.

  54. The price argument doesn’t interest businesses in getting Linux onto the desktop. Windows, Office and a PC to run them on is lots cheaper than hiring someone to work said industrial machinery. Basically, Bill Gates worked out how to sell a box of paperclips to every business in the world. uAnyone reading this post knows it’s dangerous rubbish, but their moneymaking market, the office desktop, doesn’t share our concerns. Linux will just have to cry itself to sleep on a big bed made of the rest of the computing universe.

  55. @ David Gerard and ESR

    Like I said, I use OOo and now Libre Office at a simple level (primarily so that I have the lowest chance of running into something that works differently on MS Office). But, in any case, I simply don’t know what the quality or feature benefits to MS office are.

    Why can’t Linux complete in this area?

    I know it has to be all the pieces together – Word, Excel, Power Point, Access, Outlook (voted by viruses to be software of the year) and a few other components that don’t look like that big a deal.

    Is there a problem with Linux or the Open Source way that makes competeing in this market impossible? Is it all just FUD?

    Open Source projects can be large but I don’t think that there has been any this large. So maybe you have a Meta-Project to define the integration and then the individual parts are of manageable size.

    Is thee something about Libre Office, technical or political, that makes it inappropriate as a starting point?

  56. @Brian Marshall:
    >Businesses also need custom software, and I would think that the GPL would have a chilling effect on that sort of development (internal or external) as well.

    For custom internal software, it shouldn’t (although, admittedly, it still might because of misunderstandings).

    Take the example from the dentist from your “Generation Gap” article: the fact that his billing technique is a trade secret does *not* prevent you from using a GPL’ed library (or even GPL’ed code straight up) in the billing system you write for him. He *is* allowed to have you sign an NDA that requires you not to distribute the code to anyone but him (see http://www.gnu.org/licenses/gpl-faq.html#DevelopChangesUnderNDA ), because he’s the recipient of the code you write, not the provider. *You*, on the other hand, would be violating the GPL if you modified a GPL’ed program and then made him sign an NDA as a condition for using it, so he’s free to use it, modify it, and redistribute it to anybody else under the terms of the GPL, but he can’t force them to sign an NDA. Furthermore, he’s *not* required to provide it to anybody once he has it (*if* he provides it to anyone he’s required to do so under the GPL, but he’s not required to provide it), and if he hasn’t willingly provided it to anybody and somebody gets ahold of it (say, if a thief breaks into his office, or an employee leaks a copy), he *can* take them to court under trade secret law (see http://www.gnu.org/licenses/gpl-faq.html#StolenCopy ).

  57. > Is there a problem with Linux or the Open Source way that makes competeing in this market impossible? Is it all just FUD?

    I don’t know if it’s impossible, but apparently it’s extremely hard. I can think of a number of reasons, probably reinforcing each other.

    - the perceived or real inferiority of OO.org/LibreOffice, or of open source clones of Windows desktop applications in general
    - the tight integration of MSO, not just among its components, but also with MS server products (Exchange, SharePoint;, … )
    - the whole ecosphere and network effects thing :
    if all your colleagues and partners use MS Office and assume you do too, if the off the shelf business software you use assumes it’ll run on a Windows PC with MS Office, if 3rd party software vendors rely on MSO API’s for some of the features in their software, you can make your live a whole lot harder by switching to something else. And why would you want to do that ?

    -(other) transition costs
    - “hordes of hobbyists can’t produce enterprise class software” and “no one ever got fired for buying IBM, … err, Microsoft Office”

  58. >For custom internal software, it shouldn’t (although, admittedly, it still might because of misunderstandings).

    Or because of fuzziness of what counts as “internal” for a large, distributed company, or even worse if they want to share their network and software with other parts of their supply-chain, which would definitely count as “distribution”.

  59. Note that I didn’t just make those examples up. I have seen them discussed several times in articles on supply-chain management and enterprise software integration.

  60. @Jon Brase:

    Furthermore, [the dentist is] *not* required to provide it to anybody once he has it (*if* he provides it to anyone he’s required to do so under the GPL, but he’s not required to provide it),

    Yeah, but when you try to use a license as a society altering tool, you get some unintended side-effects. Let’s say that the dentist gives a copy to a professional acquaintance. If it’s under the GPL, the acquaintance might demand the source, and the dentist says “I have no idea what you’re talking about.” And he doesn’t, even though he was provided the source along with the application.

  61. @ Jon Brase

    Re: Writing a closed-source application using a LGPLed library

    In the hypothetical case of my dentist and I writing a closed source application in “The Generation Gap”, it should be obvious that we would not go to this much work if we didn’t expect to sell closed-source copies of this software (that, hypothetically, includes a LGPLed library).

    Since the whole (hypothetical) idea would be to sell the application in for form of an executable, this would make it a “Combined Work” and the LGPL would put rules and restrictions upon it that would prevent this project from ever getting off the ground. If I was the dentist, I sure as hell wouldn’t go along with all the crap in the LGPL, and the GPL is much worse.

    The nature of your paragraph about the different options and the corresponding rules and restrictions is a perfect example of how silly-if-it-wasn’t-scary the LGPL and GPL are.

    The vast majority of the time it took me to write this response was taken up by trying to understand the LGPL – it is so convoluted because it is trying to legislate utopia (sorry – in this case “Lesser” utopia) – which take a lot of writing.

    This is just my opinion. I know that many people disagree. I use facilities that are GPLed every day.

    I think the term “copyleft” is very appropriate – it is by and for leftist adolescents and adolescents-at-heart.

    I am not sorry if this offends anyone, and I won’t be responding to any comment that tries to convert me to the cause (I generally take the same position with Christians).

  62. I won’t be responding to any comment that tries to convert me to the cause

    I will respond to discussion or questions about Open Source and “Open Source inside closed source” development – I just don’t feel up to parrying conversion attempts by GPL fans.

  63. Patrick: Yes, and yet there are Stallmanites out there who will vociferously disagree that the GPL is anything but an explicitly political license designed with the goal of furthering their utopia in mind.

  64. re: Linux and the corporate desktop: It’s like David Gerard says: a PC with Windows and Office is TONS cheaper than hiring an army of Linux admins to install and maintain a fleet of Linux desktops, even if you factor in viruses, complicated licensing issues and everything. That’s the reason why you don’t see more Linux on the corporate desktop. The only example of Linux being cheaper is in an LTSP-type setup. which is why you see quite a few LTSP implementations in schools and in non-profits. This creates a different set of problems for corporate environments, where the flexibility of individual workstations is prized over true centralized control. If tablets and smartphones weren’t already taking over for PCs in many application, with applications moving increasingly into both public and private “clouds” — clusters of virtualized machines hosting web applications and databases hosted on clusters of blade servers running bare metal hypervisors, I would have said that virtualization might have fixed those flexibility issues, which would have favored Linux desktops, eventually.

    Back on topic: CC-NC doesn’t fix anything and opens up a whole can of worms. Take, for example, the soccer photo example someone listed above: NC might prevent Addidas from using your kids’ photos, but what isn’t clear is, for example, what if I used your kid’s picture as clipart for my blog, which carries advertising that pays me, if I’m lucky, $20 a year? I’m not making money directly from the picture, but I’m “making money” from my blog, even if it is just a pittance. And it gives away tons of valuable information, such as how get your scanner working your Ubuntu PC, or how to hack your NAS box to serve up your printer. Your CC-NC license precludes me from using it altogether, and I must steer clear of it unless I wish to bring the wrath a possible lawsuit onto my head.

  65. ” a PC with Windows and Office is TONS cheaper than hiring an army of Linux admins to install and maintain a fleet of Linux desktops, even if you factor in viruses, complicated licensing issues and everything.”

    Citation needed. Munich isn’t finding that, for example. My point was that Windows+Office+PC is cheap and commodified enough as industrial machinery goes that businesses aren’t used to looking any further, and given it’s the main thing Microsoft does that actually makes money they hang onto it for grim death. Linux has taken over the rest of the computing universe, but Microsoft still has the desktop, while there are desktops.

    Also, mediocre Windows admins are themselves a commodity. Good Windows admins exist and they cost as much as or more than a good Unix admin, but there’s more room for bad ones to get work. So they do.

    ” This creates a different set of problems for corporate environments, where the flexibility of individual workstations is prized over true centralized control.”

    This does not jibe with my knowledge of corporate desktops, where overly-standardised desktops are maintained to overly-standardised procedures by overly-standardised Windows admins. The faff I had to go through to get an Ubuntu desktop at work was ridiculous, and what swung it was that we found out that networks were running Ubuntu on their PCs ;-)

  66. ” a PC with Windows and Office is TONS cheaper…
    Citation needed.

    So, is there any fundamental reason why Linux can’t get into the office? Granted it would be a big project. We would need Ground-Truth documents for all the MS Office products and the software with which they are integrated.

    Developing all that software so that it behaved just the way Windows software behaves would be a huge, frustrating, never-ending project.

    Is it just that Linux developers are already developing – probably something technical that they like, as opposed to [shudder] Outlook, which they all hate with a passion?

    Has the Linux / Open Source community just basically given up because:
    – it would be a massive amount of work

    – Linux has been very successful almost everywhere except the desktop

    – Everyone that likes Linux is already running it so… why bother?

    I started to say “There is money at stake”, but I realized that that money is already being spent for Windows admin folks and developers.

    Is there just really no net gain outside the Linux community?

    We have come so far (gnome 3 not included – I am very happy with Xfce).

    Is Linux on the desktop just for us geeks that like Linux plus non-profits and suchlike?

    Have people considered the possibility that upcoming Windows software version could fairly easily detect whether the document was created on Windows software and sabotage any document that wasn’t?

  67. I would guess the obstacle is the sales team. They don’t target anyone who uses the software, they target the people who sign the cheques. Who live in Excel and Outlook. And they are absolutely vicious and consider any competition a life-or-death enemy – look at the story of the origins of OOXML.

  68. …look at the story of the origins of OOXML.

    I looked into it briefly. It is a wild story. And the whole concept of being able to patent a file format – am I right about that? – is totally ridiculous.

    I would guess the obstacle is the sales team.

    Yeah… we have at least 2 orders of magnitude more developers but no real sales people… Well, I guess Red Hat probably does, but Red Hat by itself is never going to outsell Microsoft.

    It is a frustrating situation.

  69. @Patrick:
    >Yeah, but when you try to use a license as a society altering tool, you get some unintended side-effects. Let’s say that the dentist gives a copy to a professional acquaintance. If it’s under the GPL, the acquaintance might demand the source, and the dentist says “I have no idea what you’re talking about.” And he doesn’t, even though he was provided the source along with the application.

    OK, fair point. Although frankly I’d think the dentist would be more concerned by one of the intended side effects: He would have to trust the professional acquaintance not to distribute the program to the general public, as the GPL would forbid him from licensing it to the acquaintance under terms that would prevent that. If he anticipates doing stuff like that, then yes, it’s probably best not to use GPL’ed components. I’ll also acknowledge billswift’s argument about fuzziness in the definition of internal for large companies.

    @Brian Marshall:
    >Since the whole (hypothetical) idea would be to sell the application in for form of an executable,

    I thought the whole idea was to have some application that the dentist had and his competitors didn’t in order to give him an efficiency advantage. Yes, if he wants to sell it by the copy, the GPL is not for him.

    I thought you were arguing that the GPL was bad for strictly internal software, but if you’re not, then I don’t really have much more to say.

    @esr:
    >I think it’s questionable whether the GPL works in practice. I have argued before that it may actually be slowing down the rate of open-source adoption.

    At the end of that article, you ask the question “Does the open-source community believe in itself, genuinely believe it has a more efficient system of production?”

    The way I see it, we do in a free market, but government interference in the form of copyrights and patents skews the playing field (generally, in an economy where the government offers to enforce monopolies for market participants, those who take advantage of the offer will do better than those that don’t).

    If you believed that, what would you do?

    Side note/rant: While nobody has made it in this thread, the allegation that copyrights and patents have anything to do with capitalism is one that I’ve always found maddening. As I see it, they’re holdovers from the bad old days of mercantilism, having more to do with the government-enforced monopolies of that era than with physical property (as is suggested by calling them “intellectual property”). Given that the book generally considered to be the founding work of capitalism (that is, The Wealth of Nations) was written as an attack on mercantilism, I don’t believe we should be holding up the zombie remains of mercantilism as essential elements of capitalism.

  70. You are all incorrect. The reason businesses use Office is because of file format issues. I have to have a copy of office on my mac even though Apple’s productivity suit is better in every possible way (other than compatibility with the latest versions of Office’s file format).

    Because everyone uses the other formats everyone has to use office. Its a massive network effect. The only way to fix it is to bootstrap a new network in a specialized niche (apple has done this for presentation software).

    Find a good Niche for an open source version of Excel thats actually better than Excel and you can then expand from that beachhead.

  71. >As I see it, [copyrights and patents] holdovers from the bad old days of mercantilism,

    This is historically true but not dispositive. Many legal institutions are legacies from even earlier systems with even less relationship to modern capitalism (absolute monarchy, feudalism) but we do not deprecate them solely on that account. The roots of trial by jury, for example, extend back to the early-medieval practice of compurgation. So the fact that copyrights and patents were invented by mercantilists is not in itself a strike against them.

    The right questions to ask about any such institution are not about its history but its consequences.

  72. @morgan

    CC-NC doesn’t fix anything and opens up a whole can of worms. Take, for example, the soccer photo example someone listed above: NC might prevent Addidas from using your kids’ photos, but what isn’t clear is, for example, what if I used your kid’s picture as clipart for my blog, which carries advertising that pays me, if I’m lucky, $20 a year? I’m not making money directly from the picture, but I’m “making money” from my blog, even if it is just a pittance. And it gives away tons of valuable information, such as how get your scanner working your Ubuntu PC, or how to hack your NAS box to serve up your printer. Your CC-NC license precludes me from using it altogether, and I must steer clear of it unless I wish to bring the wrath a possible lawsuit onto my head.

    1) I don’t care if you make $20 off your blog and most folks reasonably wouldn’t either. This whole “Oh noes, it’ll keep people from using it on their blogs if they have ads” is a bullshit elevation of a very minor corner case. A gray area can be solved by clarifying NC if required rather than abandoning NC.

    2) I don’t really care if you can use my photos on your money making blog or not. Really. No more than I care that community rules on common green space used for soccer games and picnics may not allow you to graze your potentially commercial or non-commercial pet goat (because you might sell some milk from it once in a blue moon) on it. If you keep it on a leash and pick up all the poop like all the other pet owners nobody is likely to care.

    Just because CC-NC doesn’t fix anything for YOU doesn’t mean it’s not useful for others.

  73. This whole discussion about NC and ad carrying blog posts (which is indeed legally relevant) just shows how bad copyright law fits the 21st century.

  74. “This whole discussion about NC and ad carrying blog posts (which is indeed legally relevant) just shows how bad copyright law fits the 21st century.”

    Well, yeah. -NC is a bad workaround for perpetual rabid copyright.

    Is there anyone pushing seriously for a short term, e.g. 14 years or 15 years? (Stallman thinks, tactically, that 5 years is too short for the good of free software, but 10 years would be fine – though I can’t quickly find a cite for the latter.)

  75. @david

    Citation needed. Munich isn’t finding that, for example. My point was that Windows+Office+PC is cheap and commodified enough as industrial machinery goes that businesses aren’t used to looking any further, and given it’s the main thing Microsoft does that actually makes money they hang onto it for grim death. Linux has taken over the rest of the computing universe, but Microsoft still has the desktop, while there are desktops.

    Citation needed. I don’t see that Linux has taken over the rest of the computing universe. There are lots of servers that ship with Windows, Solaris, and HPUX. The majority in terms of revenue:

    “Linux server demand was positively impacted by high performance computing (HPC) and cloud infrastructure deployments, as hardware revenue improved 16.0% year over year in 1Q12 to $2.4 billion. Linux servers now represent 20.7% of all server revenue, up 3.3 points when compared with the first quarter of 2011.”

    http://www.idc.com/getdoc.jsp?containerId=prUS23513412

    Linux holds 60+% share of WEB servers. Whether that is “taking over” depends on how you want to spin it. But Window’s 36% share is higher than one would have expected for web servers…and the trend has been flat or in window’s favor the last couple years:

    http://w3techs.com/technologies/history_overview/operating_system/ms/y

    And iOS currently dominates tablets if you want to count them as PCs.

    Munich is an iffy success story even if you accept Ude’s numbers without question. Which you can’t…for example while there are 12K linux machines he uses 15K for the number of Windows and Office licenses in his calculations…a 3K or 20% bonus in number fudging right off the bat. Then there’s the assumption of a 3-4 year replacement cycle when they historically had kept using WinNT for 8 years before upgrading.

    If they saved any money at all it wasn’t much…€11.7M vs €11.8M-€13.4M. And it took since 2004 to migrate a mere 12K machines. Seriously WTF?

    The important question is whether or not they improved their users’ productivity.

    My inclination is that the whole thing was a largish net loss given the rather tepid savings that Ude could spin.

    Vienna was an epic failure.

    The French Gendarmerie Nationale is a better case study but you need to factor in the costs of migration from their traditional desktop applications to web apps by contracting all that work out to SAP. A smart move but still a required cost to factor in.

  76. @David Gerard
    European pirate parties fight for short copyright terms.

  77. This whole discussion about NC and ad carrying blog posts (which is indeed legally relevant) just shows how bad copyright law fits the 21st century.

    Why? For what reason should you have the right to use MY photos in ANY manner if I don’t wish it?

    I paid for the camera, I went to the event, I took the picture and it’s mine. That I choose to share it under a NC basis is FAR better than not sharing it at all and despite the protestations of the purists, putting it into the commons under a NC clause is still both sharing with the commons AND compatible with current and historical use of the commons.

    Making the other parents happy makes me happy. But I am under no obligation to give you squat to use on your blog.

  78. The reason businesses use Office is because of file format issues.

    That’s simply not true. It is one of the reasons. Office today with its tie ins to Sharepoint, Dynamics has features the free suites simply don’t have. Office 10 years ago had features like ODBC, a database (Access / Base), a diagramming tool (Visio)… that free solutions didn’t have or weren’t close functionality wise. They still don’t offer anything as feature rich as Outlook / Exchange. As the free software suites have approached feature parity they’ve gained marketshare and estimates put them at around 18% in the home, small business and foreign markets. But in general platform shifts require the new platform to be substantially better and the free suites haven’t been able to pull ahead in almost any area. They are perceived as a worse solution for less money and those people who want a worse solution for less money use them.

    IMHO open source advocates don’t tend to be power users of their office suites and so don’t realize how far short these solutions fall for power users. Now the bottom of the market may very well be huge, there are verticals to go after. Education, until graduate school, is a massive group of users, almost none of whom are power users. There is no good reason that with a little bit of fairly simply to implement education oriented features Open Office or Calligra couldn’t snap up this market and pick up over 1/2 the home users worldwide in a heartbeat.

    But once you start getting to enterprise, no it is not just file formats that is the problem. For enterprise:

    a) Which PBX solutions does your office suite coordinate with?
    b) What Business Intelligence systems do you have integration with?
    c) How well do you integrate with document management solutions?
    d) Which automated document construction solutions do you support?

  79. Let’s say that the dentist gives a copy to a professional acquaintance. If it’s under the GPL, the acquaintance might demand the source, and the dentist says “I have no idea what you’re talking about.”

    And then the dentist says “I got it here” and points to the repository he got it from. Since the dentist hasn’t modified the code in anyway providing the repositories source location satisfies the GPL.

  80. As far as I can tell, the reason Linux has no desktop traction is fundamentally that Microsoft has held onto its desktop monopoly for grim death. The year of the Linux desktop was 2007, when cheap netbooks appeared and Microsoft actually had effective competition for the first time and had to drop XP licences to a reported $0-$5. Microsoft and Intel soon killed the entire sector, and Microsoft got one of its Taiwanese hardware partners to publicly apologise for displaying a Linux-based system. All of this was widely covered at the time. It was nothing to do with the GPL nature of the software.

    David, I agree with you. There have been a few windows that were missed.

    1) During the mid 1990s with the Oracle / Sun push towards virtualized desktop. At this point I think the OS itself was too immature.

    2) Before Windows XP when Windows 2000 features were not available for home users and small business. At this point Linux had functional but somewhat inferior GUIs, a more difficult configuration that could have been overcome by OEMs but didn’t have a good enough office suite. It also was lacking games which is key for the home market.

    3) The netbook opening you covered above. Yes Microsoft was brutal.

    4) The transition to 64 bit computing that Eric talked about. When Linux machines could have owned the high end. Itanium just wasn’t good enough and by the time the 32-64 bit hybrids came around Microsoft did a fantastic job here in making this migration seamless. Can’t really blame this one on Linux at all they got unlucky.

    I think that we are about to have however:

    5) Microsoft needs to push up the cost of their x86 hardware to get ubiquitous computing to work. They likely are going to need to abandon the low end to do this. I think that should create an opening at the low end.

  81. The worse-is-better solution to office software that’s actually gaining traction is Google Apps.

    Am I the only one that wouldn’t dream of putting anything other than photos I want to share and suchlike in a “cloud”? Particularly when the cloud under consideration, here, is run be Google, which never erases anything (at least sorta)? Where I have to have an Internet connection to get at my documents? Where they will eventually go “We’re really sorry, but it seems that late last night…”?

    In a time when disk space is almost free and behind my firewall and my router (which also has a firewall), why?

    The answer is “it instantly integrates everything and everyone in your company”. Right, plus agencies with subpoenas, agencies that don’t need subpoenas and don’t have to tell you why and, eventually hardware problems and/or malware problems.

    No Thank you.

  82. re: selling closed software with GPL or LGPL functions for the dentist

    Yes, if he wants to sell it by the copy, the GPL is not for him.

    So…. the LGPLed functions were my first choice, but because of the use of the software, I have to go with a choice that is not as good, costs more or both. The dentist and I are poorer for it, and in a tiny way, the world is poorer for it.

    ESR has already referred to his article The Economic Case Against the GPL which is well worth reading.

    I don’t have time right now to read all 146 comments, but they are very interesting, in that they reflect a moral utopia versus grubby money mindset; that it isn’t about money, it is about morality; that there is something morally wrong about someone making money on something someone else has done, that it is a moral position that software should be free, etc., etc. ad leftium.

    I agree with a comment by Jay…

    you’re not going to change anyone’s mind, for one reason: you’re trying to counter religious arguments with logical ones. Those who believe the GPL is a Good Thing do not care what its economic benefits or hindrances are. They only care about Freedom!!! – as long as you don’t drag those dirty rotten developers into the picture.

    If someone takes, even “steals”, something that is non-depleting and makes money with it, the amount of wealth in society increases.

    If someone wants to do something and decides to finally try to fully understand the GPL and LGPL and says “This is so complicated and totally impractical for what I want to do… so fuck it”, wealth that could have been added to society, isn’t.

    For good things not to happen due to complexity and fear of doing something that is against the rules is why GPL, LGPL and CC-NC are wrong – they are bad for society.

  83. Shit. I said that I wouldn’t argue with people trying to convert me to the GPL and now I am doing the same thing from the other side. Sorry.

  84. @esr:
    >The right questions to ask about any such institution are not about its history but its consequences.

    Right, and I don’t see that copyrights and patents have any better consequences than any of the other kinds of government-granted monopolies of the mercantile era, and especially not in the digital age.

    But that was my side-rant. I’d still like to pick your brain on what you’d do if you believed what I believe: That open source is better, but that copyrights and patents incentivize less efficient systems of production?

    Is the GPL (or something like it) the best solution in that case, or something else (such as, for example, having the Free Software community release all its software under BSD licenses or into the public domain and use the energy saved by not arguing about and maintaining licenses on mounting a frontal assault on IP law)?

  85. Brian –

    I am not sure that I understand your question. I feel exactly the same way about GPL 1 and GPL 2 – I only mentioned GPL 3 because it is the latest version.

    Then the second half of the question stands as a refutation. The GPL2 offering a much more complex license than the BSD and MIT licenses it replaced were successful. Other successful projects like Firefox (MPL), Open Office (used to be SISSL) show rather complex licenses. It appears that the correlation between simple licenses and adoption is not simple. it may very well be negative.

  86. >I’d still like to pick your brain on what you’d do if you believed what I believe

    More or less exactly what I am doing.

    I’m certainly in favor of less arguments about licenses and more pushing back against IP law.

  87. It appears that the correlation between simple licenses and adoption is not simple. it may very well be negative.

    I agree with your the first sentence. I strongly doubt the second. Large projects have to use licenses that will attract a lot of developers, who are mostly relatively young and relatively leftist with visions of utopia. Visions of utopia are good. Leftists ain’t.

  88. ESR –

    Just as a response your article here I think you are assuming a rather oversimplified model of only 2 universes. I’d say that the situation is likely something more like this:

    There are roughly 5000 (arbitrary number) ways of organizing the software ecosystem.
    a) Group A of about about 500 of them are compatible with heavy use of GPLed software.
    b) Group B of about 1000 of them are compatible with heavy use of the types of commercial licenses we commonly see today.
    c) Group X consists of the intersection of Group A and Group B and says has 100 ways in it.

    Different organizations of the software ecosystem are more or less efficient depending on the organization of dozen of other aspects of society. Inversely software i.e. communications and technolog effects the efficiency of different organizations of society. The market will in general tend to encourage a move from less efficient to more efficient organizations both for society and software construction and this encouragement will be often successful when friction is low. It will tend to not be successful over short and medium terms when friction is high.

    We as humans have no way of knowing given the current level of technology is a optimal efficiency solution exists in Group A\X (A excluding member of X), B\X or X or one of the 3100 organizations not in any of those 3 groups. We strongly suspect based on our theories that organizations with lots of communication are better and lowering communication barriers in the software ecosystem will probably lower them overall in society. But that’s about it for what can be known about social organization and software efficiency.

    In the same way if we add a
    d) Group C consists of those organization of the software ecosystem where large numbers of programs are under “business friendly” licenses like the BSD, MIT… Again we’ll assume 1000.

    We get a lot of possible intersections.

    We would suspect that Group B and Group C have a large intersection say 500 organizations of the software ecosystem
    We would suspect that Group A and Group C have a moderate number say 250 organizations.
    And if may even be the case that A intersect B insect C has some organizations say 50.

    What I don’t see is any reason to believe that it follows that A intersect B intersect C has better efficiency solutions than any of the 950 which in Group A that aren’t in that set.

  89. Brian –

    I’m not sure how your dislike of leftists is supposed to disprove a negative correlation between large projects and simple licenses. If anything it argues for a positive correlation. Leftists want a more left wing society and thus agree to work on projects with complex (i.e. business unfriendly) licenses far more often…. Hence a negative correlation. All your doing is saying you don’t like the motivations of why people contribute. That has nothing to do with which licenses were successful historically or which ones will be successful forward going.

    Moreover, you are trying to have it both ways when it comes to markets. If we are going to go to a market model, then we are no longer interested in the ethics of why economic actors tend to pick particular products. You are trying to make a moral case while claiming to be talking about business efficiency. Under your theory constructing GPLed software creates a competitive advantage because it makes a large group of leftists feel good and thus be willing to work for less compensation. This free to create “good feeling” is thus lowering the cost of producing software and thus is wealth creating.

  90. @Brian Marshall:
    >I don’t have time right now to read all 146 comments, but they are very interesting, in that they reflect a moral utopia versus grubby money mindset; that it isn’t about money, it is about morality;
    that there is something morally wrong about someone making money on something someone else has done,

    “It isn’t about money, it is about morality” doesn’t match up with “there is something morally wrong about someone making money on something someone else has done”. If there were something wrong with that, it would be about both money and morality.

    But the issue is not with making money, it’s that not every possible or imaginable way of making money is right. To take an extreme case, robbing a bank is a great way of making money, but not a moral one.

    Selling software by the copy is not itself immoral, but keeping yourself from being undercut by the people you sell to without crossing moral boundaries is extremely difficult.

    People finding business models that work with GPL’ed software (so long as those business models don’t involve loopholing around some prohibition in the GPL) would not be defeat for GPL advocates, it would be vindication. My bet is on some type of commission based set-up, maybe something like Kickstarter.

    >Shit. I said that I wouldn’t argue with people trying to convert me to the GPL and now I am doing the same thing from the other side. Sorry.

    I have no problem with it: you actually have a half decent chance of convincing me. Your chances are fairly good of convincing me that the linking restrictions in the GPL are bad (I’m already mostly convinced of that myself, it’s just that I fear that the copyleft/share alike terms of the license may be easily loopholeable without them). You even have a decent chance of convincing me that the copyleft terms are bad (especially if you can convince me that the linking restrictions are untenable without allaying my fears of that their removable would make the copyleft terms too easy to loophole around). The part that will be hardest is convincing me that the “anti-tivoization” clause is bad: locked-down hardware for which the owner does not have the key is an assault on *physical* private property in the name of “intellectual property”.

  91. @ CD-Host

    Yes, you are correct – I confused myself – large projects want non-simple licenses – a negative correlation between simple licenses and adoption.

    All your doing is saying you don’t like the motivations of why people contribute. That has nothing to do with which licenses were successful historically or which ones will be successful forward going.

    Gotta watch “your” versus “you’re” ;-)

    I am saying that to attract lots of developers, large projects need to use a license that a lot of developers like. A lot of (particularly young) developers like GPL and similar licenses, so they get used a lot, particularly on large projects.

    Moreover, you are trying to have it both ways when it comes to markets. If we are going to go to a market model, then we are no longer interested in the ethics of why economic actors tend to pick particular products. ….

    No – I my point was about the effects of GPL-like licenses on the creation of wealth.

    My reference to leftist developers was just an attempt to connect the attitudes of many young people and the licenses they like.

    When I said “Leftists ain’t [good]” I was merely expressing an opinion and taking a shot at leftists – it has nothing to do with my position on licenses (directly, anyway). I should avoid cheap-shots like that because they tend to just confuse what I am actually trying to say.

  92. @brian

    Large projects have to use licenses that will attract a lot of developers, who are mostly relatively young and relatively leftist with visions of utopia.

    It strikes me that large open source projects are often dominated by corporate coders. In which case the attraction for developers is a paycheck. In cases where GPL provides a strategic wedge against competitors (like IBM vs Sun) then it would be preferred.

    Otherwise donating resources to help a large permissive or weak copyleft (LGPL/MPL) project is better. They can contribute to the core and still make money on a pro version or on paid plugins.

  93. @ Jon Brase

    Before reading your comment, in my comment to CD-Host, I was going to say that “claiming the GPL is morally or ethically superior to, say the MIT license is horse shit. But, hey, that is just my opinion.”

    While it would please me to convince you to see the situation the way I do, it is the copyleft and share-alike that I find objectionable, so I don’t think that I have much of a chance.

    I spent a fair bit of time yesterday trying to really understand the LGPL. In my opinion, it is complex and convoluted because it is trying to push for a “utopia” with which I strongly disagree. I am not a leftist and I think that those who are are deluded.

    Case in point (and dragging this back to the original topic): the leftist worldview always, that is ALWAYS, involves vast numbers of rules and restrictions. Take the GPL for example. This complexity scares people away from using GPLed or LGPLed software.

    What I am trying to say is essentially the same as (or perhaps a superset of) what ESR said in The Economic Case Against the GPL.

    I really have to get some work done… and I really hate arguing about the fine points of the GPL because I disagree with it’s whole reason for existing. They call it “copyleft” for a reason. They are leftists; they want lots of rules. I don’t.

    @ Nigel

    I am sorry.. I just can’t stand debating the fine points of the GPL and the LGPL. I strongly dislike both, partly because I disagree with the whole copyleft and share-alike idea and partly because they are so complex that they scare people away just because of the complexity.

    I use a slight variagion of the MIT license. If you have a copy, do anything you want with it but don’t sue me. If people can make money with it, that is great – I have helped someone else create wealth.

  94. @brian

    If someone takes, even “steals”, something that is non-depleting and makes money with it, the amount of wealth in society increases.

    Except that “non-depleting” is often a false premise. You can argue that copying a program does not deplete the supply of that program but often you can deplete the number of potential customers by doing so.

    This is an issue that app developers sometimes have with Amazon’s “app of the day” giveaways. If you cater to a niche market of 100K users with your $0.99 app and Amazon’s app of the day fills 50K of that niche at $0.00 your potential revenue just cratered:

    http://www.tomsguide.com/us/Appstore-Amazon-Shifty-Jelly-Free-App-of-the-Day-Froyo,news-12074.html

    “Did the exposure count for much in the days afterwards?” the blog reads. “That’s also a big no, the day after saw a blip in sales, followed by things going back to exactly where we started, selling a few apps a day. In fact Amazon decided to rub salt in the wounds a little further by discounting our app to 99 cents for a few days after the free promotion. All we got was about 300 emails a day to answer over the space of a few weeks, that left us tired and burnt out. For all we know most of the people who wanted our application, now have it.

  95. @ Nigel

    Sorry, man, but I just can’t get bogged down in this any longer. I have work that I have to do and I basically hate this argument. Unfortunately, I sorted of started it (at this end of this post, anyway), but I have stated my position. Arguing about the fine points is like trying to get an atheist to argue about the virtues of being Catholic or Protestant – it is just something that they don’t want to do. Same here. And, like I said, I have made myself clear: I dislike copyleft and I think the complexity is chilling.

  96. But that was my side-rant. I’d still like to pick your brain on what you’d do if you believed what I believe: That open source is better, but that copyrights and patents incentivize less efficient systems of production?

    Jon since Bryan is dropping out I’ll take the other side of this. The answer is of course they do. They create a incentivize less efficient production in exchange for
    a) In the case of patents incentivizing research
    b) In the case of copyright incentivizing the creation of reproducible works
    c) In the case of trademarks incentivizing the creation of brand standards and thereby reducing trade friction

    Trademarks are the area where the law has done the best job. I think we have a near universal consensus that the advantages down the line of maintaining accurate branding are worth the additional advertising and merchandising costs in the USA. That’s not believed everywhere however. So lets start there. Do you agree with trademark or do you think I should be able to create a product made to look like an iPhone and sell an “Apple iPhone” and thereby instantly let the buyer know what I claim my product is capable of doing?

    Assuming you go with the typical answer. Let’s move to copyright. This one is trickier. The laws have gotten substantially more onerous in this generation. But lets take a something like fiction books and a short copyright. Do you believe authors should have a monopoly on their work for say 20 years? And if not, how do authors prevent themselves from being undercut? What’s their financial incentive to create valuable works?

  97. >But lets take a something like fiction books [...] What’s their financial incentive to create valuable works?

    I think it was Stephen King who said, when asked why he writes books, answered “why do you assume I have a choice?”

    Maybe he meant that writing is the only skill he has.
    Or maybe he meant that he simply has to write. I think the latter : that creative people have no choice but to create – they have something inside them that needs to come out, and come out it will.

    There’s lots of examples : Einstein the patent cleck, hackers, penniless painters, …

    So they don’t need a financial incentive in order to create. They do need to make a living somehow, but not necessarily from their creativity. Though it’s kinda nice when you can combine the two.

  98. OT/Threadjack…

    Toys’R’Us to sell a $150 Android tablet that actually makes me want one:
    http://news.cnet.com/8301-1023_3-57509518-93/toys-r-us-unwraps-$150-tabeo-tablet-for-kids/

    The specs are not shabby at all, and I can see a LOT of parents purchasing this as additional babysitting. I think if it were priced at say, $99, Android would crush the iPad for the youth market. But even without, it looks like a very good move by whoever came up with the idea.

  99. @Nigel
    For 99%+ of people NC does not mean legally what they think it means nor does it do what they think it does. Futhermore, it never ever means the same if you cross a national border.

    Using a legal license that means something that neither you nor your users understand, and means something else in every country sounds non-intelligent.

  100. @CD-Host:
    >Jon since Bryan is dropping out I’ll take the other side of this.

    Actually, I had both a response to Brian and to Eric in that post, and in the part you responded to I was talking to Eric, who I hope will still respond.

    Nevertheless, I’ll write a response to you after supper.

  101. @winter

    “Creative Commons noncommercial licenses include a definition of commercial use, which precludes use of rights granted for commercial purposes:

    … in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

    The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs. Only 7% of creators and 11% of users replied that the term was “different from and incompatible with” their definition; 6% or creators and 4% of users replied “don’t know/not sure.” 74% and 77% of creators and users respectively think others share their definition and only 13% of creators and 11% of users wanted to change their definition after completing the questionnaire.

    Overall, our NC licenses appear to be working rather well — they are our most popular licenses and we are not aware of a large number of disputes between licensors and licensees over the meaning of the term. The study hints at some of the potential reasons for this state of affairs, including that users are in some cases more conservative in their interpretation of what is noncommercial than are creators and that in some cases creators who earn more money from their work (i.e., have more reason to dispute questionable uses) are more liberal in their interpretation of what is noncommercial than are those who earn less.”

    http://creativecommons.org/weblog/entry/17127

    So, what orifice are you pulling your 99% number out of?

  102. Since the bold tags got stripped out:

    The majority of respondents (87% of creators, 85% of users) replied that the definition was “essentially the same as” (43% of creators, 42% of users) or “different from but still compatible with” (44% of creators, 43% of users) theirs.

    AND

    Overall, our NC licenses appear to be working rather well — they are our most popular licenses and we are not aware of a large number of disputes between licensors and licensees over the meaning of the term.

  103. @CD-Host:
    >Trademarks are the area where the law has done the best job. I think we have a near universal consensus that the advantages down the line of maintaining accurate branding are worth the additional advertising and merchandising costs in the USA.

    I generally agree. Physical objects have the natural feature that only one person can physically possess an object at a time. Identifying information has the natural feature that only one person can use a particular identifier without causing confusion. This is close enough to the natural exclusivity of physical property that treating identifiers as property makes sense.

    >But lets take a something like fiction books and a short copyright. Do you believe authors should have a monopoly on their work for say 20 years?

    I don’t believe they necessarily *should* have a monopoly, but something like that kind of a time limit is necessary to make such a thing tolerable if there’s no way of getting around it. There also have to be limitations on the kinds of licenses that can be used, etc; if the government is going to create monopolies, it must take responsibility for their behavior.

    >And if not, how do authors prevent themselves from being undercut? What’s their financial incentive to create valuable works?

    As I see it, *old* information has zero free market value, but *new* information is worth something. My general thought is that the ideal way of doing things is to give authors lump sums for first releases, in the vein of the commissioning of artists and composers in the pre-copyright era, or something like Kickstarter today.

    And while it is good to let authors make money off their work, it is not necessary to incentivize the publication of every book in Borges’ Library of Babel (see: http://en.wikipedia.org/wiki/The_Library_of_Babel ), nor to ensure that every possible cent of profit is squeezed out of every book that is published (as the content industry is trying to lobby us into doing today).

  104. @Jon
    There also have to be limitations on the kinds of licenses that can be used, etc; if the government is going to create monopolies, it must take responsibility for their behavior.

    Well our government does put limitations on licenses. There is a rather extensive body of law on that area.

    As I see it, *old* information has zero free market value, but *new* information is worth something.

    Not really. Old books continue to sell. Old movies still generate revenue. Old music is a consistent moneymaker. Before the internet killed the CD business 1/2 of the record company revenue was from albums over 5 years old, with a median for that 1/2 around 15 years old.

    Anyway if you are more or less OK with copyright, patent and trademark then it sounds like you want relatively minor reforms. Like shorter copyright. I agree there. I think things have gotten way way out of hand. But that’s not “copyright is evil”.

  105. >Well our government does put limitations on licenses. There is a rather extensive body of law on that area.

    Some, but I don’t think enough.

    >Not really. Old books continue to sell. Old movies still generate revenue. Old music is a consistent moneymaker. Before the internet killed the CD business 1/2 of the record company revenue was from albums over 5 years old, with a median for that 1/2 around 15 years old.

    But that’s not free market value. That’s the value in a monopolized market.

    >Anyway if you are more or less OK with copyright, patent and trademark then it sounds like you want relatively minor reforms. Like shorter copyright. I agree there. I think things have gotten way way out of hand. But that’s not “copyright is evil”.

    I’m OK with trademarks. I’m not really OK with copyrights and patents. If they’re kept under control, I’m willing to grudgingly tolerate them if the rest of society insists that they should exist.

    Part of it, I guess, is that the modern state (and the prevailing trends) of the system demonstrates, as I see it, what a slippery slope it is for copyright and patents to exist in the first place. Your milage may vary.

  106. After doing a little research, it seems that there is very little interest in Linux on the business desktop. I would think that this is at least partly because Linux and the majority of software that comes in a distro has a license that has 9 pages of rules and restrictions. Businesses don’t want the legal uncertainty that comes with that.

    Have you ever actually read the Windows EULA? And that’s not even touching enterprise volume licensing agreements. I have a standard 5-page consulting contract written in English, and one major client prefers a 23-page vendor agreement that spends a quarter-page discussing the terms of the aircraft insurance I’m supposed to carry.

  107. As I see it, *old* information has zero free market value, but *new* information is worth something.

    Easy for folks with no skin in the game to state.

    But that’s not free market value. That’s the value in a monopolized market.

    And if the continued income didn’t exist then artists and creators would have to capture all of their income up front making the initial sale much higher priced. The end result is fewer works at higher price.

    The stupidity of calling this a “monopolized” market is evident when you apply this claim to physical objects. Such as Samsung has a monopoly on Galaxy S3s. Well no shit, they are the only ones that make the thing. But there are gazillions of alternatives so there’s no monopoly power and the cell phone market largely free market.

  108. ESR has made very few comments on this blog.

    I imagine that is because almost everyone, including I, have gone off on tangents about why they like various CC and software licenses and ignored his point – there is no clear distinction between what is, and what is not, “commercial” use.

    As ESR pointed said,

    What is only a source of contention within our community could prove very damaging to it if unsympathetic courts were to make even mildly adverse rulings.

    Perhaps the subject of this blog should be discussed for a while. Never really knowing whether you are going to get sued can have a very chilling effect.

    On Friday, September 7 2012 at 12:24 pm, Hari said:

    Non-Commercial is something hard to define, true, but I think it’s one of those “I can identify it if I see it” thing. Yes, each case depends on its own facts. I think NC is a reasonable restriction for creative works.

    I agree with his first sentence. His second sentence is the heart of the problem (and to me, what it seems to imply) is the problem… each case is different, it is impossible to make any real solid rule about it so if it goes before a court, who knows what might happen. That is ESR’s point. So, for that reason ESR (and I) disagree with Hari’s last sentence. CC-NC is bad because you often don’t know how a given use might be interpreted by the contributor or the courts.

  109. Just thinking aloud: suppose someone else manages to make money with a work I done, and suppose that work is a repeatable product of my abilities, i.e. I can make many similar work in the future. Does this scenario harm me in any way? I think not, it is a good advertisement. Provided that the attribution is properly done, of course.

    How about some one-time-wonder work? What if I make something so cool I can never repeat it and someone else profits off it? In what circumstances could that happen? A work is a product of an idea and its execution. Executional ability is perfectly repeatable. It is the idea that can be one-time-only.

    So ultimately it depends on how we judge the idea vs. execution ratio of succesful works. I am mostly on the execution side, because I think creativity tends to be overhyped these days, but I may be wrong.

    Perhaps it depends on the field. There are some non-repeatable songs or photos that depend on a circumstance or a sudden surge of idea that makes them unique and valuable, and in this case a non-commercial licence may make sense. Of useful software, I am not so sure.

  110. >The right questions to ask about any such institution are not about its history but its consequences.

    It’s interesting to see how non-patented industries like fashion flourish spectacularly well without them. If only Levi’s could make jeans (without paying royalties) we probably wouldn’t have over a billion people running around in them. It seems in the absence of patents the original inventors still do well enough, because people get overwhelmed by the huge amount of selection available and follow the brand name in order to reduce the cost of choice itself. If I want to spend only an hour shopping for jeans – and I do – it will be Levi’s or a Replay (nostalgy for the cult of the Replay 909 of my teenage years). But this may be industry-dependent and not true in other industries.

  111. @brian Given that CC has found that users of NC works likely have more conservatively interpreted what is or isn’t NC than content owners then this is less of a real world concern than a theoretical one brought up by folks with an axe to grind.

    There is only “contention within the community” because some folks have a bug up their rears about ideological purity rather than live and let live practicalness. Because NC is “ungenerous” enough for them. Be generous with your OWN damn work, not that of others.

    87% of NC users who responded to the study disagree with your assertion that CC-NC is bad because they don’t know how a given use might be interpreted by the contributor or the courts.

    The study suggests strongly that CC-NC is widely used within the community and the community seems to know what the hell NC means and there haven’t been many disputes.

    So where data to support this alleged chilling effect and where is your evidence that people are worried about getting sued under NC?

    The premise that “there is no clear distinction between what is, and what is not, “commercial” use.” cannot be simply asserted and accepted. EVEN if there exists some confusion in some areas. Until proven otherwise, clarity can be provided though legislation, case law or simply better limits in CC’s definition of what is commercial advantage (the conservative interpretation of the monetary compensation aspect is quite clear even if some folks don’t like the answer).

    Especially given that commercial advantage is cited in 17 U.S.C. §  506(a) and CC explicitly limits this definition to exclude file exchange (barter) as was expanded in the NET Act of 1997. “Commercial advantage” is not some term made up by CC. It’s a term made up by Congress.

    Finally, what do you propose to replace CC-NC if it is removed? 2/3 rds of all licenses that people choose have the NC restriction [1]. The answer for most if not all NC haters is “Nothing and we don’t care. You should do what WE want you to do”. That’s not how it works in the real world. Content creators are under zero obligation to meet your definition of generosity.

    If the answer from most content creators that use CC-NC is “We’ll drop back to All Rights Reserved” then what you are advocating is the removal of a large if not the majority of works available in the CC commons. From my perspective, this is the most likely result. If CC-BY-SA was sufficient for their needs then they would have used CC-BY-SA in the first place. More likely is a backlash against zealots screwing around with a good thing. That’s a far greater risk than ESR’s theoretical risks of NC being gray.

    [1] Jochi Ito, http://www.quora.com/How-does-Creative-Commons-define-non-commercial-NC

  112. More data:

    In 2010 73% of CC license users on Flickr used a NC variant. That’s 99.7 MILLION instances where photos were shared under the NC clause and CC was unaware of any significant disputes.

    CC-BY-NC-ND was clearly the most commonly used CC license on Flickr through 2010 with CC-BY-NC-SA a close second.

    http://creativecommons.org/weblog/entry/20870

    Looking at todays data from Flickr:

    CC-BY – 32.6M
    CC-BY-ND – 12.8M
    CC-BY-NC-ND – 66.7M
    CC-BY-NC – 32.2M
    CC-BY-NC-SA – 69.1M
    CC-BY-SA – 21.5M

    235M images under CC or which 168M are under the NC clause…71%. BY-NC-ND and BY-NC-SA are still the two most commonly used CC licenses on Flickr.

    http://www.flickr.com/creativecommons/

    NC is unclear to WHOM and chilling effect WHERE? Certainly not for the folks that put 168M photos on Flickr under NC for others to enjoy, reuse and remix (for non-commercial purposes).

  113. @ Nigel

    The primary purpose of my email was to remind folks what the subject of this post really is – that because there is no clear line in the sand for -NC. When ESR wrote the post, he was presumably aware that -CC has worked out really well. The point is that one or more bad court decisions could cause a lot of damage in/to the CC community.

    As a side issue – in your

    totally sincere, “FUCK YOU”.

    you said:

    This prohibits Addidas from using pictures of our kids in ads without our explicit permission like they could under just CC-BY

    What if the United Way used a picture of your kids, maybe even on a billboard or this year’s theme poster? You implied that you didn’t want to go -ND because the kids might use the pictures in “calendars, school projects, christmas cards, etc.”

    I have a doctor’s appointment, so I will not be able to comment on any comments for a few hours.

  114. I don’t make any distinction between commercial use by United Way and Adidas. Either one can simply contact me and ask for permission if they want to use the photo for free…ignoring for the moment they have to anyway in the instance of pictures of people.

    I am far more likely to say yes to United Way than to an Adidas ad campaign but that’s neither here nor there. As the content creator it is MY choice that matters in how generous to United Way I wish to be.

    As to the point of a “bad court decision” you first have to show that there is significant risk of such a bad decision happening. After 200M NC instances on Fllickr alone and no “significant” disputes to date that’s not a gimme.

    Whereas simply using CC-BY or CC-BY-SA has at least one court case that ended badly for the content owner and the individual that was in the photo.

  115. “I don’t make any distinction between commercial use by United Way and Adidas.”

    Yes, but CC-NC does. United Way is noncommercial, even if their activity looks very commercial-like. This would be a clear example of -NC not doing what you think it does, and is one of the cases in which -NC turns out to be fractally complicated when you look closely.

  116. @david

    Does United Way derive a commercial advantage or monetary gain in their use? If so then it is treated the same. Use of the material in a fund raiser whether through direct sales (say a calendar) or advertising campaign provides United Way clear intent for monetary gain in its use. The fact that is, or is not, a non-profit is immaterial. It is the manner of the use of the material that is important, not the nature of the entity using the material.

    The specific NC legal definition is in line with wording used in 17 U.S.C. § 506(a).

    There are many corner cases and gray areas for Fair Use as well. Shall we dispense with that too?

  117. @Nigel:
    >And if the continued income didn’t exist then artists and creators would have to capture all of their income up front making the initial sale much higher priced. The end result is fewer works at higher price.

    I think there are ways to mitigate this: As I said, a Kickstarter-type system could be used to distribute the costs by pooling the public’s resources to give a lump-sum payment to the artist/author/programmer. I think that, given the costs of producing information (high one-time costs for the person who comes up with it initially, low (and often already paid) costs for the equipment to duplicate it for anyone who makes a copy, and negligible per-copy costs), that paying producers of information one-time lump sums is best.

    Heck, the actual suppliers of information actually *do* tend, to get paid once for the information they create even now, in markets where they work as salaried or hourly staff and their employer (the middleman) ends up collecting the monopoly rents from copyright.

    Furthermore, even if you do get fewer works, as I said to CD-Host, we don’t need to incentivize the creation of every book in the Library of Babel.

    >The stupidity of calling this a “monopolized” market is evident when you apply this claim to physical objects. Such as Samsung has a monopoly on Galaxy S3s. Well no shit, they are the only ones that make the thing. But there are gazillions of alternatives so there’s no monopoly power and the cell phone market largely free market.

    Several issues here:

    First of all, in many cases (if not the majority of cases) the “gazillions of alternatives” bit doesn’t apply to information: having one novel in a genre and being a satisfied customer doesn’t mean that you won’t buy any more novels in that genre (as it would with cell phones). In fact, it probably means you’ll buy more. The Wheel of Time does not satisfy demand for The Lord of the Rings.

    Secondly, Samsung does have monopolies (patents) that cover the Galaxy S3 (though not specifically). Patents, unlike copyrights, are *broad* monopolies, and, in the current state of society, patent holders are allowed to get away with applying for and enforcing patents that are even broader than the law actually allows. Without patents it would be possible for someone else to take an S3, reverse engineer it, and set up their own production line for S3′s (though under trademark law, which I’m fine with, they wouldn’t be able to *call* their product a “Galaxy S3″) without running into legal trouble with Samsung.

    Also, unlike with information, there are significant costs associated with setting up a production line for smartphones. Computers (and thus the infrastructure for duplicating information) are cheap, chip fabs and other factories (and thus the infrastructure for duplicating smart phones) are not.

  118. Yes, but CC-NC does. United Way is noncommercial, even if their activity looks very commercial-like. This would be a clear example of -NC not doing what you think it does, and is one of the cases in which -NC turns out to be fractally complicated when you look closely.

    I don’t think there is a clear definition in law of commerce. There are cases where commerce is defined as any kind of economic intercourse. There are cases where commerce requires buying and selling of goods.

    CC By NC does have a definition itself
    You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

    The license itself says seems to limit this to commercial advantage prohibited (receipt, or expectation of receipt, of anything of value) except in the case of distribution by digit file sharing which is allowed.

    -NC clearly prohibits an advertising agency from selling Nigel’s soccer pictures
    -NC I think under this definition does prohibit the use in a billboard from Adidas or United Way
    -NC clearly allows United Way to use the image in a flyer for an event not directed at fundraising

  119. @ CD-Host and Nigel

    The CC legal code says

    any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

    and 17 U.S.C. § 506(a)(1)(A) says:

    for purposes of commercial advantage or private financial gain

    .

    Note the word “private”. The United Way is “private” in the sense that it is not an entity of the government. But it seems to me that what the United Way does is not (CC legal code) “private monetary compensation” – it raises money mostly to help the public (although some goes to keeping the organization doing what it does).

    Regardless of whether you agree with me, I think that this is a perfect example of where CC-NC might be interpreted one way by one court and one way by another. Or, as ESR said “there is no bright-line legal test for “commercial activity”.

    The cute part about this is that if you disagree, you are basically proving my point – ESR’s point.

    And, as CD-Host says (or implied, I think), the United Way could still make bill-boards and posters using pictures of your kids that was for an event in which they were going to provide funding to some worthy cause – surely that is not “primarily intended for or directed toward commercial advantage or private monetary compensation.”

  120. Brian –

    Yes I would agree. As long as the United Way didn’t get a cut I think under the CC-NC license they are fine using the image that way. I think the problem that ESR comments on might be fixable with pages of examples and further clarification. Ultimately though the advice for borderline cases is going to have to be “don’t use it or you may get sued”. Money cannot be changing hands directly or indirectly.

    It mostly is a license for individuals, companies, and even larger non profits mostly will have to stay away or think very carefully.

  121. @ CD-Host

    From a practical standpoint, examples can be very valuable, but… yeah… if it is grey area, the best advice is not to use anything that is CC-NC. But is that what people that contribute with CC licenses really want?

    The United Way exists to help people in need. But out of every dollar they get, they need to take a little to be able to pay the overhead – mostly staff and promotion, I would imagine. I think that it is silly to call the United Way a commercial activity/venture, but that was Nigel’s first reaction. I assume his reason for this is that money is changing hands.

    This is what ESR is trying to get across – CC-NC has a chilling effect and two or three bad lawsuits could do a lot of damage to the whole CC community.

  122. @Brian Marshall:

    This is what ESR is trying to get across – CC-NC has a chilling effect and two or three bad lawsuits could do a lot of damage to the whole CC community.

    For code, I agree completely. But that’s just because code, though it may be cultural, is primarily functional or educational.

    For Nigel’s picture, I disagree. The license sends multiple clear messages, including who the copyright owner is, and that he understands a little bit about licensing. The fact that there may be some gray areas — well, that’s par for the course for any copyrighted material, and up to the potential licensor to sort out.

    It’s only common sense for a big organization like the United Way to understand copyright; if they get their knuckles rapped by a judge because they used Nigel’s picture in a fundraising letter, I don’t think that reflects negatively at all on the CC community. Rather, it reflects negatively on the United Way.

  123. @CD-Host:

    It mostly is a license for individuals, companies, and even larger non profits mostly will have to stay away or think very carefully.

    Anybody in a company or non-profit who sees a picture they like, and sees the notice on it will presumably also see the copyright owner in the notice. It really is common sense for them to ask for permission. The license doesn’t say “stay away” as much as it says “please check to see if it’s OK to use.”

  124. @ Patrick Maupin

    I must admit that I have been thinking of this from a software perspective. When I write something, I just copyright it and make it freely down-loadable from my website.

    I used the United Way as an example of where Nigel’s goals and use of -NC break down because I thought it would be clear that it is not a commercial activity/endeavour. Nigel thought otherwise.

    I agree with ESR that the whole -NC business is vague. But is it dangerous? As you point out, the United Way should know enough to take care of themselves. The vagueness would only hurt the CC if it hurt individuals. I haven’t thought much about this… apparently it hasn’t been a problem or we would know about it….

    OK – I have an idea… where it would become a damaging problem is if we have the reverse of the United Way scenario. An organization or rich (and probably somewhat deranged) individual makes a variety of photos available under a -NC CC license. A well-meaning but somewhat vapour-headed person goes “Oh, I love it… it would look so cool on the poster” and then gets his/her ass sued off.

    It wouldn’t surprise me if this happens more often than apparently never; we would only hear about it if the owner of the photo found out about the use. Perhaps it is this sort of scenario that ESR had in mind. Eventually it will happen and someone will be badly hurt.

    Re:

    The license doesn’t say “stay away” as much as it says “please check to see if it’s OK to use.”

    But the license does (effectively) say “stay away”. Maybe what the CC needs is a CC-OA (Organizations Ask) or maybe CC-PO (Personal-use OK; otherwise ask).

  125. @brian

    The fact that you are confused does not mean that there is widespread confusion among actual users of the CC-NC license…either content owners or content users. CC has a report regarding the community use and belief of what NC means.

    Nor is pointing out that you are confused affirmation that there is a great deal of legal ambiguity or that ESR’s assertion is correct. It only means that you are confused, not the courts. Show me where the CC-NC clause has caused actual legal confusion.

    It’s not “cute”. It’s FUD.

    As Ken Barber pointed out:

    the meaning of “commercial use” as it relates to photographic images is well-understood by stock agencies — and the legions of lawyers who are eager to sue them. The existence of one or two gray areas that have not yet been delineated by the courts hardly invalidates the existence of a (mostly) bright line.?

  126. @ Nigel

    I have tried to help, particularly in relation to our host’s original post.

    You have been rude and offensive for no apparent reason. In your first comment, you explain how you look at the matter and then say…

    Fuck you if you don’t understand why this is important to parents. No, seriously, that isn’t your usual internet bravado “fuck you” but an I’d say it to your face, totally sincere, “FUCK YOU”.

    You would really go up to ESR, our host, and say “FUCK YOU”, just because he doesn’t understand your point of view? After explaining your position, didn’t think that maybe you should give him a chance to think about what you said and reply? Who knows, maybe he agrees with you and it is just a matter of how to achieve what you both want.

    Your position (in light of my United Way example) isn’t exactly pristine. What if the school or class wanted to make calendars that included your kids’ pictures and sell them to parents for some small sum to help fund a class trip? -NC would then be a problem, wouldn’t it?

    In any case, I believe I would like to join the group of people to whom you would sincerely say “FUCK YOU” because they don’t see things your way and call it a day.

  127. Universities, hospitals, many (pre-)schools, daycare centres are commercial entities. As are many web sites. They will (must) stay away from NC licensed material.

    Proffesional photographers know that. Most amateurs do not.

  128. @brian

    I think that it is silly to call the United Way a commercial activity/venture, but that was Nigel’s first reaction.

    I never stated that the United Way was a for-profit commercial venture. I said that I believe the scenario was commercial use. For example Save the Children sells neckties to raise funds. Based on what I know they are not exempt from all rules regarding commerce just because they are a charity…for example in Maryland they would be obligated to collect sales tax on the neckties.

    I work for a non-profit. In 2010 we had $4.2B in total revenues, spent $70M on fundraising expenses, $326M in administrative expenses and had $3.6B in net assets.

    Looking at United Way in 2010 they had $4.23B in revenue and spent $347M in fundraising and $283M in administrative expenses.

    http://www.forbes.com/lists/2011/14/charities-11_United-Way_CH0253.html

    The largest charity in the US was the Lutheran Services in America with $18B in total revenue… more than Adidas with 17.3B in revenue.

    United Way was bigger than SMC in terms of total revenue ($3.9B) and around the same as Nvidia ($4B), Intuit ($4.1B) and Adobe ($4.2B).

    Non-profits ARE big business.

    I’m thinking that you don’t appreciate the nature or scale of large non-profits and charities.

  129. You have been rude and offensive for no apparent reason.

    No apparent reason? You’re messing around with something that has been used millions of times, fills a significant need of content creators, allows for reuse and remix in the non-commercial, private user domain and you think there’s no reason for a little harsh language?

    CC-NC is a critical part of the commons and you guys want to break it for no better reason than you don’t like it. You wish to narrow the definition of sharing in the global community just like what happened in software when it excluded academic licenses and other source available licenses from the open source umbrella.

    You would really go up to ESR, our host, and say “FUCK YOU”,

    Heck yes, but I would do it in the nicest way. In what universe is ESR so thin skinned as to not to accept a heartfelt FU at face value? He’s been cursed at by far better and far worse than I.

    I don’t curse much because if you do it loses its impact but you seem overly hung up about it.

    In any case, I believe I would like to join the group of people to whom you would sincerely say “FUCK YOU” because they don’t see things your way and call it a day.

    Me and what appears to be the majority of CC license users. Something you guys steadfastly refuse to recognize.

    But hey, carry on about the cursing if you want instead rather than refute the number and popularity of NC, provide actual cases of legal misunderstanding, or provide viable alternatives to meet the needs of current NC users. Instead lets worry over the plight of downtrodden multi billion dollar non-profits because of those meanie NC license users.

  130. Forgot to address this attempt to muddy the waters further:

    What if the school or class wanted to make calendars that included your kids’ pictures and sell them to parents for some small sum to help fund a class trip? -NC would then be a problem, wouldn’t it?

    No it wouldn’t.

    Because normal folks would shoot me an email or give me a call and ask “Can I use this in my calendar for a fundraiser?” at which point my answer would most likely be “Sure” if it wasn’t actually being used to make fun of whomever was in the picture like in the Virgin ad.

    Even if I said “No” it STILL wouldn’t be a problem. There are lots of alternative pictures that are just as good to use.

    And even if there weren’t other pictures just as good the answer is STILL “no, it’s not a problem” because the content creator is under no obligation to share anything. Without the NC clause the most probable alternative choice is All Rights Reserved.

  131. @Patrick

    Anybody in a company or non-profit who sees a picture they like, and sees the notice on it will presumably also see the copyright owner in the notice. It really is common sense for them to ask for permission. The license doesn’t say “stay away” as much as it says “please check to see if it’s OK to use.”

    That’s the case with any license. You can always ask the copyright holder for a different license.

  132. From a practical standpoint, examples can be very valuable, but… yeah… if it is grey area, the best advice is not to use anything that is CC-NC. But is that what people that contribute with CC licenses really want?

    I think so. At least from my time in academia, NC licenses meant other academics could use it free but companies had to pay. i would say the United Way is sorta of in the middle since it is an institution, so I wouldn’t have too much problem with it having to get another license.

    The United Way exists to help people in need. But out of every dollar they get, they need to take a little to be able to pay the overhead – mostly staff and promotion, I would imagine.

    Even if they are talking 0% taking the money at all, I think falls under the NC part.

    This is what ESR is trying to get across – CC-NC has a chilling effect and two or three bad lawsuits could do a lot of damage to the whole CC community.

    What damage? This is where I’m not following. NC licenses were never meant to allow institutions beyond the local bowling league to do stuff. They are restrictive licenses.

  133. @CD-Host:

    That’s the case with any license. You can always ask the copyright holder for a different license.

    Sure. But the question was whether the CC-NC license was unalloyed badness. My argument is that, in the case of photographs, it probably is actually a good thing, allowing Nigel and presumably hundreds of thousands of others to feel fairly comfortable sharing their photographs without having to hire a lawyer or think too deeply about it until somebody actually asks.

    In the case of code (or even in the case of art, if I were, e.g. creating some sort of mashup), I would try to avoid code licensed this way, or if it were code that was really germane, I might contact the author to see if he would change the license. But if he wouldn’t, I would use something else.

  134. @Brian:

    But the license does (effectively) say “stay away”. Maybe what the CC needs is a CC-OA (Organizations Ask) or maybe CC-PO (Personal-use OK; otherwise ask).

    No. It tells some people “welcome.” Those other options you mention are completely redundant to it. As CD-Host points out, everything is negotiable. But thinking about things deeply enough to slap a copyright notice on them at least probably gets you your name on them too.

    And anybody who shares those photos far and wide on their own website is disincentivized to strip the copyright notice — that would be a copyright violation, yet them just reproducing your image isn’t. So it might actually be more likely that when a commercial outfit stumbles across your must-have photo, the original copyright notice will still be intact.

    Win-win-win. The non-profit people who repost your photo don’t feel guilty about violating your “all rights reserved,” you didn’t have to craft a special license on your own, and you can politely tell the company that asks to go to hell, or that, yes, $10,000 would be a very nice sum for the picture. Whichever.

    Where I agree with esr is that the CC-NC license is pure poison, even more so than the GPL in some very serious respects, when it comes to using anything licensed under it in a derivative work. Where I agree with Nigel is that (at least with the way current copyright law works), there is a place for a license that tells your friends that you won’t sue them (or their friends and family) without reasonable cause (as decided by a court, based on your choice of license), for making a few coffee mugs with that picture of their adorable Johnny kissing your little Lisa and handing them out at Christmas.

    Now whether it should be a “CC” license is up for debate. On the one hand, it’s not really adding all that much to the larger commons. On the other hand, it makes many more people aware of issues about licensing, and aware of different alternatives they can choose based on their personal motivations. So I’m inclined to say it’s probably a net positive, but the market will certainly help sort it out if it’s not. I don’t think it’s as corrosive as the GPL for the simple reason that there isn’t (at least so far) a messiah figure pushing it and attaching moral import to its selection. So if you see some code licensed under the CC-NC license, you are either dealing with someone who rejects Stallman as being too commercial, or someone who hasn’t thought it through very thoroughly. If the code is interesting, a single email should tell you which of those two cases the author falls in, and if he simply hasn’t thought it through, a few more emails explaining your situation and how you don’t want to put your client’s client’s clients in a position to have to worry about the license might actually get him to think about it and change his license choice.

  135. @ Patrick Maupin

    I said:

    But the license does (effectively) say “stay away”.

    and you said:

    No. It tells some people “welcome.”

    Of course – that is what CC is all about. I am just new to the whole subject; I mean, I have been seeing “Licensed under the Creative Commons” for many years, but this is the first time I have learned anything about it or the different license types.

  136. @ Patrick Maupin and CD-Host

    CD-Host said:

    That’s the case with any license. You can always ask the copyright holder for a different license.

    and Patrick Maupin said:

    Sure. But the question was whether the CC-NC license was unalloyed badness. … allowing Nigel and presumably hundreds of thousands of others to feel fairly comfortable sharing their photographs

    Now then,
    In ESR’s original post, he said

    The reasons it should be removed have nothing to do with any of the deep philosophical/political positions usually argued in the debate, and everything to do with the fact that there is no bright-line legal test for “commercial activity”.

    ESR’s point has nothing to do with whether CC-NC is good for Nigel, but rather about the predictability of court cases. He wasn’t even referring to how common the problem would be (obviously it is not common at all), but pointing out a potential legal problem.

    That is why Nigel’s first response was so offensively offensive.

  137. @Brian:

    The reasons it should be removed have nothing to do with any of the deep philosophical/political positions usually argued in the debate, and everything to do with the fact that there is no bright-line legal test for “commercial activity”.

    ESR’s point has nothing to do with whether CC-NC is good for Nigel, but rather about the predictability of court cases. He wasn’t even referring to how common the problem would be (obviously it is not common at all), but pointing out a potential legal problem.

    But to the extent that’s true, the problem already exists, independent of the existence or use of the CC-NC license. There will always be people who want to give their photos to their friends and family, but just don’t want the photos winding up on a jar of baby food. Computers and the internet make photo sharing so easy that it only makes sense to tag every photo with the intent of the copyright owner as regards use of the photo.

    So I would challenge all the nay-sayers to explain exactly what Nigel should attach to his photos to explain his intentions, and to explain when he is likely to sue you for overstepping what he views as acceptable use for the photos. Bonus points for something that can be used by millions of similarly situated people, that serves as a shorthand signalling device, so they don’t have to read the entire damn license for every damn photo.

    Also, bear in mind that if there are any serious weaknesses or misunderstandings about what CC-NC means, we should actually welcome the court cases to help test them out. Maybe the license gets modified as a result of such court action, or maybe it works fine (and by fine, I mean — does what the ordinary licensor and licensee expect). In any case, I would much rather have a single dominant license in that particular niche than a zillion DIY licenses, and, I’m sure, so would the courts and any future licensors and licensees. The fact that we don’t have predictability in this area is not because of the license — it’s because of the new reality that copies are so darn easy to make, which is extremely disrupting to the previous order of things. You never used to have to worry that if you gave a photo to your Aunt Tillie, that she would share it with her best friend, and her best friend’s son, the head of a major PR firm, would ask for a copy and then use it in advertising.

    That is why Nigel’s first response was so offensively offensive.

    As Nigel correctly explained, his response wasn’t anywhere near as offensive as a lot of what goes on around here. It could have been worded a bit better, but from his perspective “it’s working fine for me — why THE FUCK would you want to make it harder to find something like that??!?” is a not unexpected initial reaction.

  138. The existence of murky cases where it may or may not be self defense does not make the existence of a self defense exemption to a general prohibition on murder a harmful thing. Similarly, the existence of murky cases where it may or may not be non-commercial does not make the existence of a non-commercial exemption to a general prohibition on republishing a bad thing.

    It’s not a perfect match of course. Among other things, people are going to engage in self defense even if there isn’t a bright line legal defense for them, whereas they might opt not to engage in re-publishing at all if they aren’t sure. The incentives are entirely different. I just wanted to point out that the same argument applies to cases that I am fairly certain that ESR would not choose to apply it. I would argue that the existence of murky cases is a cost of such exemptions, but it is not fair only to look at one cost and no benefits to declare something harmful.

  139. Right. Comments around here often drift far afield from the subject of the initial post, and, in that respect, I am more guilty than most.

  140. Brian –

    ESR’s point has nothing to do with whether CC-NC is good for Nigel, but rather about the predictability of court cases

    What’s unpredictable about the court cases? Commercial activity as defined in the license is rather broad. Most companies fall under it. Most individuals don’t. Mot large charities would. Most small charities would be able to avoid it. The grey / unpredictable area seems small. I’m still unclear where you think this is unpredictable. It seems to me essentially be an “all rights reserved” statement with just a few narrow exemptions which in practice cover a myriad of cases.

  141. @ CD-Host

    I did provide an example, where an individual in a commercial context – say an entrepreneur – in ignorance of how CC licensing works, uses something that is licensed -NC and gets their ass sued off. A few cases of “the little guy” getting sued could put a damper on CC.

    HOWEVER…

    I only really learned what about the CC licenses a week ago. I had seen references to it but really knew nothing about it. So, ESR, who isn’t a fool, says, in effect: “Look! There is some potential liability here that could have negative consequences for CC in general”.

    It is ESR that is making this point, not me. I would like to see this point get more discussion. I don’t know… maybe “Hey, it’s never been a problem.” is all the discussion that is required, but that would imply that ESR is a fool. I don’t buy that.

    I just want to see ESR’s point argued back and forth instead of (or at least, in addition to) the issue of which license is best for different things argued back and forth.

    I don’t agree that the grey / unpredictable area is small. Based on the Creative Commons blog to which ESR referred debating the NonCommercial and NoDerivatives options there isn’t even agreement as to whether “commercial” means “cash transactions”, or “sales for profit” or maybe even “sales at a profit”. It is vague.

  142. @Brian Marshall:

    I did provide an example, where an individual in a commercial context – say an entrepreneur – in ignorance of how CC licensing works, uses something that is licensed -NC and gets their ass sued off.

    Same thing would happen if they used something without a license. The license is better — you can read it, rather trying to read the copyright statute.

    A few cases of “the little guy” getting sued could put a damper on CC.

    No, a few cases of “the little guy” getting sued would prove out to potential users that CC-NC is great, because it has teeth.

  143. @ Patrick Maupin

    I have thought of counter-arguments to both of your points, but I am getting tired of this. So let’s go at this (at least for one more comment) from a different direction…

    In the context of the matter at hand, do you think that ESR is a fool?

  144. @Brian:

    I have thought of counter-arguments to both of your points, but I am getting tired of this.

    So you know exactly what kind of notice Nigel should put on his pictures, but you won’t bother to tell us? Interesting. Waiting for the patent to issue or what?

    In the context of the matter at hand, do you think that ESR is a fool?

    Now it’s my turn to be rude. Where the fuck do you get off asking idiotic questions like that? If you have answers for my questions, or even if you have reasonable arguments, let’s have ‘em. Elsewise, STFU and GTH.

  145. Hey, man – ESR says we have a problem. You and CD-Host keep saying we don’t have a problem. We are talking about probabilities, here; not something you can measure. ESR thinks the problem is real. Do you think his position is foolish? I don’t think that this is an idiotic question. Being foolish and being a fool… I am trying to determine what your position is on ESR thinking this is important.

    As for the two replies… I will overlook how offensive you are being and give you my two responses. It just seems that these arguments about licenses end up being like arguments about religion – they just never end…

    re:

    I did provide an example, where an individual in a commercial context – say an entrepreneur – in ignorance of how CC licensing works, uses something that is licensed -NC and gets their ass sued off.

    Same thing would happen if they used something without a license. The license is better — you can read it, rather trying to read the copyright statute.

    The (maybe air-headed guy) thinks “Hey, its Creative Commons – I can use this stuff” – his ignorance causes him to get sued, which is way out of proportion to what he was expecting. He should have known about the licenses but just thought the stuff was there for the taking.

    re:

    A few cases of “the little guy” getting sued could put a damper on CC.

    No, a few cases of “the little guy” getting sued would prove out to potential users that CC-NC is great, because it has teeth.

    You might think it is great, but if some air-head gets sued for a large amount for basically being an air-head, it could scare a lot of people that also don’t have the sense to investigate exactly what Creative Commons is all about. Maybe you don’t care about air-heads. But it could get into the newspapers and… does a guy deserve to get sued for a large amount for being an air-head?

  146. @Brian:

    Hey, man – ESR says we have a problem. You and CD-Host keep saying we don’t have a problem.

    Where did I say we don’t have a problem? FWIW, I think some people in the country have drug problems, but I think the answer to that is education, not the war on drugs.

    We are talking about probabilities, here; not something you can measure.

    Ooh, the best kind of problem. An unmeasurable one.

    ESR thinks the problem is real.

    I don’t disagree that there could be a problem with people using this license in ways that could be detrimental to others. Whether esr had already thought through Nigel’s issue or not, I can’t say. But I can say (and have said) that there ought to be *some* widely used license that supports what Nigel wants to do, because a lot of people want to do that. And that license could be denigrated, deprecated, spat on, whatever you want, but it should *exist*. Because the alternative is people just not sharing their pictures with their loved ones, or using their own misunderstood bogus license, or the pictures not having any license at all, which is “all rights reserved,” which is its own legal can of worms, arguably potentially much worse for the average joe user than CC-NC, given the strict liability of copyright law. What’s more, the author info is more likely to get separated from the picture if no license is attached.

    Do you think his position is foolish?

    No. Can you read? Because I already said this multiple times.

    I don’t think that this is an idiotic question.

    No, it’s a patronizing offensive question, asked by someone who is either deliberately being provocative, or is too stupid to know he is being much more offensive than the people he is painting as offensive.

    Being foolish and being a fool… I am trying to determine what your position is on ESR thinking this is important.

    See, to me, it just looks like you’re being an asshole. Because I ALREADY SAID MULTIPLE TIMES that THERE ARE ISSUES HERE. And I brought up counterissues, which (to my knowledge) esr hasn’t yet addressed. And you haven’t addressed them either, just asked the argumentation-from-authority/have-you-stopped-beating-your-wife type question.

    As for the two replies… I will overlook how offensive you are being and give you my two responses.

    Believe it or not, you started it. If you go back and read the thread, you will find that the first offensive thing I said was after you provoked me. So if you’re angling for an apology, fuck you until you learn to be civil.

    The (maybe air-headed guy) thinks “Hey, its Creative Commons – I can use this stuff” – his ignorance causes him to get sued, which is way out of proportion to what he was expecting. He should have known about the licenses but just thought the stuff was there for the taking.

    I honestly don’t see how this is different than some ignorant putz just taking a picture he happened to see on the internet with no license in sight.

    No, a few cases of “the little guy” getting sued would prove out to potential users that CC-NC is great, because it has teeth.

    You might think it is great, but if some air-head gets sued for a large amount for basically being an air-head, it could scare a lot of people that also don’t have the sense to investigate exactly what Creative Commons is all about.

    And those people need to either be scared or to learn what the boundaries are, or at least learn to ask. The whole point of creative commons is to get people to share things that they wouldn’t have otherwise shared. I hate the GPL and I won’t learn or use any libraries that are under the GPL, but I will be the first one to tell people that if they’ve thought it through, and they need the GPL to be comfortable sharing their creation with the world, then they should certainly use it.

    Maybe you don’t care about air-heads. But it could get into the newspapers and… does a guy deserve to get sued for a large amount for being an air-head?

    That’s only part of the question. You’re assuming a very special air-head — one who wouldn’t have used Nigel’s photo in a way that upset Nigel if he didn’t see a license attached, but thought it was fine because he happened to see the CC-NC license attached, without understanding what ‘NC’ meant. That might actually be a pretty small subset of airhead. And, as I’ve already pointed out, suing the occasional airhead is probably the only thing that helps the rest of them to learn. Think of it as another form of darwinism. Also, the chances of a huge lawsuit against a little guy are really pretty small, because lawyers are expensive.

    The other part of the question is for people like Nigel: if they signal acceptable behavior to people using the CC-NC license, have they given up more than if they were silent on licensing, and then sued later? If the air-head loses to Nigel, that shows that “yes, this is a reasonable license for what I want to accomplish” to future Nigels.

  147. What I’m mainly curious about are the details of this:

    No. Consider the case of CC-NC material embedded in larger collections of CC or open source material.

    This isn’t a merely theoretical case. I know of a project that planned to release a for-pay iPhone port in orfder to raise money for development cosys, and had to scupper the plan becxause of CC-NC material in its artwork.

    What was the name of this project? Did the copyright holder(s) of the CC-NC artwork refuse to allow the art to be used under another license compatible with the one to be used for the iPhone port, or at all? Were they unreachable? Did the decision makers of said project decide it wasn’t possible to negotiate a compatible license or that it wasn’t worth the effort to try?

    I realize that there are problems with the permission culture. But cancelling a project without at least attempting to negotiate a compatible license strikes me as lazy.

  148. Hey, @Patrick Maupin:

    The other part of the question is for people like Nigel: if they signal acceptable behavior to people using the CC-NC license, have they given up more than if they were silent on licensing, and then sued later? If the air-head loses to Nigel, that shows that “yes, this is a reasonable license for what I want to accomplish” to future Nigels.

    While I totally get the use of licenses to signal intent, I think the biggest problem is that a signal of intent often fails to offer proper protection. The real danger for someone like Nigel is that because there is no “bright-line” legal test on commercial activity, the Nigel’s photos may, in fact, end up being used in a way that Nigel doesn’t agree with — and he’ll be left with no protection.

    IMHO, Nigel is better off signalling NO LICENSE — a simple copyright — than CC-NC. This gives him the right to determine on an individual case-by-case basis whether or not a particular use is infiringeing in his mind. Non-commercial infringing uses are limited in liabiility in the first place by existing copyright law already and personal and private use is likely to be considered fair use (an affirmative defense).

  149. @Morgan:

    And that’s why I said a few court cases could be good. Vet the license and shore it up if it’s wanting. But I partly disagree about a simple copyright notice. I’ve seen people who were clearly doing non-commercial stuff strip copyright notices in the lame attempt to not have to deal with it. With a CC-NC license, there’s no reason for those people to do that. In other words, I think that any sort of CC license stands a better chance of remaining attached to the image than a simple copyright notice. I could be wrong about this, but I think it’s pretty universal human behavior to hide activities that might be disapproved of, but to not bother to hide activities that have been pre-approved — in fact to proudly announce the pre-approval.

  150. I did provide an example, where an individual in a commercial context – say an entrepreneur – in ignorance of how CC licensing works, uses something that is licensed -NC and gets their ass sued off. A few cases of “the little guy” getting sued could put a damper on CC.

    Well the license says “non-commercial”, that’s a guy who is just ignoring licensing and well.. he wouldn’t be the first. Plus a small entrepreneur is unlikely to be worth suing for much.

  151. @ CD-Host

    Well the license says “non-commercial”, that’s a guy who is just ignoring licensing and well.. he wouldn’t be the first. Plus a small entrepreneur is unlikely to be worth suing for much.

    Yeah… I am just trying to figure out what ESR had in mind when he made it clear that he thought CC-NC was a problem.

    I am going to whine about this in the following comment.

  152. Re: the offensiveness of discourse

    I have been brooding about this thread. I find that I am really offended. In all sincerity, I have participated in this thread and in no comment have I been intentionally offensive.

    I found Nigel’s “FUCK YOU” aimed at ESR very offensive.

    I exchanged a number of comments with Patrick Maupin. I made a couple of honest errors. I asked a question in a very poor way but I am just trying to figure out what ESR had in mind – why he thinks that this is important. I now realize the importance of finding an alternative if the CC license that Nigel and many others use is to be dropped; I didn’t really see the importance of this in the context of this thread until after I received what I feel is a very offensive comment that included

    See, to me, it just looks like you’re being an asshole. Because I ALREADY SAID MULTIPLE TIMES that THERE ARE ISSUES HERE. ,,,,

    Believe it or not, you started it. If you go back and read the thread, you will find that the first offensive thing I said was after you provoked me. So if you’re angling for an apology, fuck you until you learn to be civil.

    I don’t engage in “angling for an apology”. I just feel that Patrick was extremely offensive because I made a couple of errors and, with no intention to offend, exercised some poor judgement.

    I am just wondering how other people feel about this…
    – am I just being too thin-skinned about this?
    – is this thread an outlier on the offensiveness scale?
    – did I deserve to be slapped down?

  153. I don’t agree that the grey / unpredictable area is small. Based on the Creative Commons blog to which ESR referred debating the NonCommercial and NoDerivatives options there isn’t even agreement as to whether “commercial” means “cash transactions”, or “sales for profit” or maybe even “sales at a profit”. It is vague.

    It doesn’t matter what commercial means generally. The license defines the terms in ways I believe are compatible with the form “commercial advantage or private monetary compensation” (plus sharing exception). If you get advantage from a cash transaction you are done it is a copyright violation. If there is compensation you are done. So it would have to be a cash transaction not involving either of those two things, which is rare.

    The discussion on the board was whether to change this definition, which is fine but has nothing to do with how the license as written now can be enforced.

    —–

    I think in reading your comments you don’t like the basic structure of law. In general we want laws / licenses that are:

    a) simple
    b) enforceable
    c) allow for distinctions

    Pick any 2.

  154. @ CD-Host

    When I said

    “commercial” means “cash transactions”, or “sales for profit” or maybe even “sales at a profit”

    it was from comments in the creativecommons.org/weblog/ thedebating the NonCommercial and NoDerivatives options blog in which ESR originally commented.

    I am not disagreeing with you – it seemed vague to me, but it is almost word for word the same as the definition of “NonCommercial” in the copyright law, and that seems to be considered to be well defined. The CC-NC legal code says…

    in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation

    There are, however, a wide range of ideas about this definition. For instance, in the CC blog, Terry Hancock said “By comparison, companies who distribute By-NC work must do so at a loss or else they are violating the terms of the license.”

    In any case, live and learn – a week ago I didn’t even know that there were different kinds of CC licenses – it just wasn’t something I had reason to investigate. When I wrote something (other than software), I copyrighted it and then make it available for free on my website.

  155. @ CD-Host

    Now that I think about it… is Terry Hancock correct? Can a business donate money to a very simple 100%-goes-to-the-poor charity and use CC-NC stuff on the poster? They are losing money but probably hoping to gain a PR advantage.

  156. Now that I think about it… is Terry Hancock correct? Can a business donate money to a very simple 100%-goes-to-the-poor charity and use CC-NC stuff on the poster? They are losing money but probably hoping to gain a PR advantage.

    If I can prove by preponderance of the evidence that the business sought commercial advantage through the poster then no. If they can prove they did seek commercial advantage than yes. If its in the middle it becomes grey.

  157. If I can prove by preponderance of the evidence that the business sought commercial advantage through the poster then no. If they can prove they did [not] seek commercial advantage than yes. If its in the middle it becomes grey.

    It seems to me that there is no question that they are seeking commercial – dollars in the till – advantage; it is just down the road – the result of good PR hopefully bringing in more customers. Commercial advantage is what a business is for.

    Preponderance of the evidence could be hard to come by unless someone has copies of the right emails or minutes of the board meeting, since it is a matter of intent.

    Or am I getting too generic, again?

  158. I have been brooding about this thread. I find that I am really offended. In all sincerity, I have participated in this thread and in no comment have I been intentionally offensive.

    OK.

    I found Nigel’s “FUCK YOU” aimed at ESR very offensive.

    I found it a heartfelt visceral expression of indignation of the highest order.

    I exchanged a number of comments with Patrick Maupin. I made a couple of honest errors. I asked a question in a very poor way but I am just trying to figure out what ESR had in mind – why he thinks that this is important.

    I think it’s pretty obvious why he thinks it’s important, and I think he’s correct that it is very important. I’m just worried about the side-effects of the proposed cure.

    I now realize the importance of finding an alternative if the CC license that Nigel and many others use is to be dropped; I didn’t really see the importance of this in the context of this thread until after I received what I feel is a very offensive comment that included

    Good on you for going back and re-reading and thinking about things. But the importance was there all along, and chronologically, from my perspective, I engaged in a conversation that had, in part, these words:

    So I would challenge all the nay-sayers to explain exactly what Nigel should attach to his photos to explain his intentions, and to explain when he is likely to sue you for overstepping what he views as acceptable use for the photos. Bonus points for something that can be used by millions of similarly situated people, that serves as a shorthand signalling device, so they don’t have to read the entire damn license for every damn photo.

    I have thought of counter-arguments to both of your points, but I am getting tired of this. So let’s go at this (at least for one more comment) from a different direction…

    In the context of the matter at hand, do you think that ESR is a fool?

    So you know exactly what kind of notice Nigel should put on his pictures, but you won’t bother to tell us? Interesting. Waiting for the patent to issue or what?

    Now it’s my turn to be rude. Where the fuck do you get off asking idiotic questions like that? If you have answers for my questions, or even if you have reasonable arguments, let’s have ‘em. Elsewise, STFU and GTH.

    …You and CD-Host keep saying we don’t have a problem. …
    I will overlook how offensive you are being and give you my two responses.

    So, from my perspective:

    – First, you were offended on Eric’s behalf by something that wasn’t really all that offensive

    – Second, you claimed to have all the answers, but you weren’t going to share them, and you simultaneously dismissed everything I said with “Do you think Eric is a fool?” which I found to be offensive on multiple levels, which I pointed out immediately as offensively as I could

    – Next, instead of examining why I might have found your question offensive, you completely mischaracterized my position and said you would “overlook” my behavior.

    – After this exchange, I was not only unrepentant, but doubled down. Which seems to have prompted you to go back and think through at least few things, which is good. Except that it’s bad for me in a Pavlovian conditioning sort of way.

    I don’t engage in “angling for an apology”. I just feel that Patrick was extremely offensive because I made a couple of errors and, with no intention to offend, exercised some poor judgement.

    We all exercise poor judgement all the time. And perhaps I exercised poor judgement by assuming the statement “well, $OVERALL_EXPERT disagrees with you. Do you think he is a fool?” was designed to be offensive. But, frankly, if you (or anybody else) writes it again, I will still assume it’s deliberately offensive.

    I am just wondering how other people feel about this…

    I can’t speak for others, but I will give you my take.

    – am I just being too thin-skinned about this?

    You can’t blather on about how offensive Nigel was, and then two hours later ask a question that is designed to be answered with “yes, esr is a fool”, or “no, I was a fool — he’s right” Some people seem to think it’s OK to be offensive as long as they’re not cussing or raising their voices, and that cussing or raising your voice is automatically the most offensive thing in the world. Sorry, that’s just not true.

    – is this thread an outlier on the offensiveness scale?

    Not at all.

    – did I deserve to be slapped down?

    I didn’t really slap all that hard the first time — you asserted you had answers to life, the universe and everything, but weren’t going to play, then asked me if I’d stopped beating my wife. I rudely responded that if you had answers, I’d like to see ‘em; elsewise shut up and stop being rude.

    But at that point, instead of thinking about the previous conversation, you proceeded to completely mischaracterize my position and set up a straw man and to “overlook” how offensive I was.

    So I was rude again. Which at least apparently got you to reflect on a couple of things besides your hurt feelings. Truthfully, from my perspective, it’s a gestalt thing — first, you (IMO wrongly) characterized Nigel’s intemperate remark as exceptionally intemperate, essentially deserving of censure, then you completely ignored everything everybody was saying that you hadn’t thought about while simultaneously explaining how nobody ever presents any new information that you haven’t yet thought about, then you explained you had all the answers, and then you asked me if I had stopped beating my wife.

    It’s entirely possible that if you hadn’t done any one of those things, I wouldn’t have been as rude, and probable that if you hadn’t done any two of them, I wouldn’t have been as rude. But doing all four together — you come off looking (to me) like a paternalistic, supercilious jerk.

  159. @ Patrick Maupin

    There is a big misunderstanding. I never said I had all the answers and never said I had any answer in relation to Nigel’s problem. We said:

    @Brian Marshall:

    B: I did provide an example, where an individual in a commercial context – say an entrepreneur – in ignorance of how CC licensing works, uses something that is licensed -NC and gets their ass sued off.

    P1:Same thing would happen if they used something without a license. The license is better — you can read it, rather trying to read the copyright statute.

    B: A few cases of “the little guy” getting sued could put a damper on CC.

    P2:No, a few cases of “the little guy” getting sued would prove out to potential users that CC-NC is great, because it has teeth.

    You made the two points, above. I was starting to think it was turning into one of those arguments that just goes back and forth and never ends, so I wanted to attack it from the other end – whether you thought ESR was blowing the problem he saw out of proportion. In a previous comment, I had said

    … So, ESR, who isn’t a fool, says,… It is ESR that is making this point, not me. I would like to see this point get more discussion. I don’t know… maybe “Hey, it’s never been a problem.” is all the discussion that is required, but that would imply that ESR is a fool. I don’t buy that.”

    So I used very bad judgement and asked you:
    “In the context of the matter at hand, do you think that ESR is a fool?”

    I didn’t think any of us think ESR is a fool, I was just continuing a way of referring to the matter. It was not a good way to pose the question. Nevertheless, I meant no offence; I wanted to know if you agreed with ESR about -NC and -ND.

    So…

    You thought I was claiming more than I was. I was only claiming to have counter points to your two counter points. I provided the two:

    1: the airhead sees “Creative Commons” and thinks it must be free, uses it and gets sued.

    2. air-head gets sued gets in the papers and CC gets a black eye

    I may have been wrong. But my whole claim to having the answers was only these two simple points. I was just getting tired of making counter points to counter points to counter points.

  160. @Brian Marshall:

    I was starting to think it was turning into one of those arguments that just goes back and forth and never ends,

    OK, but the arguing the same points over and over was only in your mind, and apparently partly because you refused to read and think carefully about what I and others were saying about the viewpoint of the copyright holder.

    so I wanted to attack it from the other end – whether you thought ESR was blowing the problem he saw out of proportion.

    But if you read what I had written in earlier comments you would have seen the answer. Multiple times. Seriously.

    “Hey, it’s never been a problem.” is all the discussion that is required, but that would imply that ESR is a fool. I don’t buy that.”

    And you would have read that I acknowledged a serious issue, and didn’t and don’t believe that it’s not problematic.

    I may have been wrong. But my whole claim to having the answers was only these two simple points. I was just getting tired of making counter points to counter points to counter points.

    In that case, sometimes it’s best to back off and figure out where other people are coming from.

    You seem to have taken the viewpoint of the potential “air head” (to use your terminology) user of CC-NC material to heart, and could not (or would not) get into the mindset of Nigel or someone else who wanted to share stuff in a limited fashion.

    Given that it’s the Nigels of the world who choose the license they want to distribute their stuff under, it’s really hard to see how what you perceived as a problem for the popularity of the license is, in fact, a problem for the popularity of the license. If an airhead gets sued and loses for doing something commercially crass, that’s street cred for the license. If other airheads see this happening and think the license is poison, all the better, because future Nigels won’t have to undertake similar expensive lawsuits.

    To the extent that Nigel winning a lawsuit discourages other people from putting stuff under the license, that’s goodness too — actually wonderful news, because those people would be dissuaded because they actually realize that the license is more restrictive than they need or want!

    No, I agree with Morgan — the real danger is that the license isn’t strict enough and lets the airhead get away with more than Nigel intended. But in that case, the license will be fixed with a 1.5 or 2.0 version.

    The short answer for the airheads is: copyright law has teeth. Don’t do stuff the author doesn’t want you to, and if you’re not sure, ask. As the article Jeremy links to indicates, it’s way too easy for someone who wants to use other peoples’ stuff to get stuck in an asking permission loop, but authors can be pigeonholed broadly into people who don’t care, people who only want attribution, people who want money, and people who don’t really want their stuff messed with in some fashion they would find objectionable. Unfortunately, it’s really hard to distinguish those latter two cases without asking, so my advice is to only treat as “common” things that have been clearly labeled in the first two categories, and then you won’t wind up being an airhead.

  161. @ Patrick Maupin

    You seem to have taken the viewpoint of the potential “air head” (to use your terminology) user of CC-NC material to heart, and could not (or would not) get into the mindset of Nigel or someone else who wanted to share stuff in a limited fashion.

    ESR says that CC-NC has some serious risk related to the difficulty in defining what is and is not “commercial use”. Since CC-NC has worked well up until now, it isn’t obvious (to me, at least) what that risk might be. I have been trying to think of such a scenario.

  162. It seems to me that there is no question that they are seeking commercial – dollars in the till – advantage; it is just down the road – the result of good PR hopefully bringing in more customers. Commercial advantage is what a business is for.

    Well if you have that belief then from that it follows that businesses should never use SA-NC.

  163. Here’s a question that hasn’t been raised: all the discussion about -NC above is hypothetical and theoretical. Is there any case law (anywhere in the world) concerning -NC?

  164. @Brian Marshall:

    ESR says that CC-NC has some serious risk related to the difficulty in defining what is and is not “commercial use”. Since CC-NC has worked well up until now, it isn’t obvious (to me, at least) what that risk might be. I have been trying to think of such a scenario.

    The worst-case risk is probably that of what we should call the “airhead-in-the-middle” attack. Someone who thinks that CC-xxxx means “just take it and use it” could produce a tainted and remove or hide the original copyright notice. That product could then be incorporated in others. In the US, copyright law has strict liability, which means that those other products are at serious legal risk. (The strict liability issue is one that several serious copyright scholars are arguing doesn’t match the current mash-up culture. You can google for this quite easily.)

    Basically, my opinion is that (1) CC-NC should be treated as a superset of CC-ND — don’t reuse stuff licensed under it in anything else, (2) we should educate all our friends who might be creating mashups about the copyright issues, and (3) Creative Commons themselves could significantly reduce the window of risk by publishing guidelines of their authoritative interpretation of the license vs. various scenarios, similar to the GPL FAQ. While not dispositive, courts could certainly be expected to give some heft to that verbiage in any close case.

    CC has produced a lot of tools for different uses. esr rightly notes that you could poke your eye out with one of those tools more easily than with some of the others. Others note that even though it has sharp edges, it might be a “gateway license” and do some good. My take is that simply removing the tool from the marketplace could lead to a worse situation — creations with no visible license OR creator information — and that we should probably do all we can to make sure people are well educated on the license implications for things they decide to use (“hey, why am I getting sued!!?!”) and things they decide to release (“hey, how come nobody’s using my stuff!!?!”).

    @David Gerard:

    http://en.wikipedia.org/wiki/Creative_Commons#Legal_cases

  165. Hey, man – ESR says we have a problem. You and CD-Host keep saying we don’t have a problem. We are talking about probabilities, here; not something you can measure. ESR thinks the problem is real. Do you think his position is foolish?

    I don’t know what his position is yet. I haven’t seen it elaborated.

    But my gut, at this point based on ignorance is that this is a culture clash between academic culture where discriminatory licenses are common and software culture where non-discriminatory licensing is common. One of the areas that RS and ESR have been on the same page is the importance of non-discriminatory licensing, and here comes CC offering a discriminatory license that is popular. If it gets popular with software it creates

  166. Here’s a question that hasn’t been raised: all the discussion about -NC above is hypothetical and theoretical. Is there any case law (anywhere in the world) concerning -NC?

    Yes from academia. Though nothing terribly interesting:

    1) X gets used in an academic setting
    2) X migrates, generally inadvertently, to a commercial setting and then to commercial property Y.
    3) The maker of Y (MY) and the copyright / patent owner of X (MX) have a long discussion about how much money needs to change hands.

    The amounts are fairly technology specific. The only result I know of that’s more software applicable would be that releasing under a NC license does not create intent to cause the infringement on the part of MX and thus MX’s rights to X exist. AFAIK that’s it.

  167. @CD-Host:

    But my gut, at this point based on ignorance is that this is a culture clash between academic culture where discriminatory licenses are common and software culture where non-discriminatory licensing is common.

    Not so sure I buy this. It seems to me that academia has always been interested in the free dissemination of information, mostly relying on patent protection to collect royalties for its use, and it’s only through arbitrage of controlling the peer-reviewed journals that rent-seekers have managed to force a lot of academic creations into the NC mold. But this is changing — look at all the universities that are now beginning to tell the Elseviers of the world to shove it where the sun doesn’t shine. And in terms of software, where did the BSD license or the MIT license or the NCSA license come from?

    The only result I know of that’s more software applicable would be that releasing under a NC license does not create intent to cause the infringement on the part of MX and thus MX’s rights to X exist.

    I’d be interested to see a case cite on this. AFAIK, copyright in the US has a strict liability, and “I didn’t know” is not going to get you an automatic license.

  168. I’d be interested to see a case cite on this. AFAIK, copyright in the US has a strict liability, and “I didn’t know” is not going to get you an automatic license.

    The issue isn’t “I didn’t know” but “I couldn’t possibly have known you set out to trick me”. The cases addressed that claim by the defendant that by using an NC license they were being tricked. Copyright law does protect you against being tricked. I can give you cases where things were commonly thought to be in the public domain and then years later there were suits…

    As far as BSD, MIT… obviously those also came from academia. Some academics were fine with commercial usage and wanted to create standards. NC was used by those that didn’t. I agree with you about some of the “why”. The culture developed because academics wanted to share openly among themselves but didn’t mind non academics paying.

  169. @CD-Host:

    The issue isn’t “I didn’t know” but “I couldn’t possibly have known you set out to trick me”.

    Sure, equitable estoppel is often a valid defense in copyright claims:

    http://lawprofessors.typepad.com/media_law_prof_blog/files/Dallal.pdf

    The cases addressed that claim by the defendant that by using an NC license they were being tricked.

    I’d like to see a case cite on that. That would be something the CC people might have to address, depending on exactly how the situation went.

    Copyright law does protect you against being tricked.

    Not that I know of. But common law does sometimes protect you from having to pay the trickster.

    I can give you cases where things were commonly thought to be in the public domain and then years later there were suits…

    And those would be interesting, too. AFAIK, if the original author didn’t put it in the public domain, and didn’t actively mislead people into thinking it was in the public domain, and wasn’t aware it was being used as if it was in the public domain, when he finally found out about this use, he would probably have a legitimate case, regardless of the bad actions of others. But depending on the original license, his potential remedies might vary.

    The culture developed because academics wanted to share openly among themselves but didn’t mind non academics paying.

    I think it would be more fair to say they didn’t worry about payment, because “everybody” got the articles for free. It was only when Elsevier, et al started getting really greedy that it became an issue. Their golden goose is on life-support and they are the worst ones about strangling it.

  170. ALL RIGHT!

    I agree that any solution to any problem with CC licenses has to provide for Nigel’s case because it is shared by vast numbers of people.

    But the comments and discussion today are what I have wanted to see. ESR says there is this risk. So where is the “bad”? Today’s comments are addressing that.

  171. Re: Possible Replacement for CC-NC

    At Shutterstock, the licenses for royalty-free stock photos include the clause:

    Except as expressly provided herein, you may not directly
    or indirectly use, copy or reproduce any Image (in whole or in part) more than two hundred fifty thousand (250,000) times.

    and 11 more situations limited to 250,000 times (business cards, promotional email, etc.)

    If it is desirable to replace, or promote an alternative to, CC-NC, could this be the way? There could be a fixed limit – maybe 25?. Or 10 or 100. Can a CC licenses handle a parameter – a limit set by the contributor?

    The License Deed could include:
    Under the following conditions:
    Usage Limit – you may not create more than 25 instances or copies of this work.
    or, if parameters are OK:
    Usage Limit – you may not create more than the specified number of instances or copies of this work.

    The notice could say:

    This work is available under the Creative Commons Attribution-ShareAlike-CopyLimit License under which you may not create more than 50 copies of this work.

    There are aspects, of course, including…
    – “Is the limit for the rest of my life?”
    – even a limit of one could mean use on a huge bill board or background for something at a trade show
    – a limit like 25 would allow ads on the back of buses

    Of course, I won’t be surprised if this idea has been considered and rejected before.

  172. “The gist of it is suggesting a more granular Noncommercial option, perhaps allowing an argument for what specifically the licensor means. Could something like that make it workable?”

    I think the real problem with the -NC licence is that it makes field-of-use restrictions seem like a normal part of the free culture, and that’s a bad thing for the reasons Eric outlines. Nigel does note that these things are actually useful in practice, however. And that the -NC provision has held up in court.

  173. Pingback: CC-NC Considered Harmful?

  174. Pingback: Open-Xchange: El lanzamiento de « OX Documents », una suite ofimática desde el navegador basada en OpenOffice | Gustavo Pimentel's GNU/Linux Blog

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