

CC-NC considered harmful - kumarshantanu
http://esr.ibiblio.org/?p=4559

======
morsch
ESR argues that CC-NC is problematic because commercial activity is hard to
define in strict terms. I agree with this premise, though CC licensing is
hardly the only case where we're facing the problem of defining where
commercial activity starts.

That said, for many authors the choice won't be between CC BY-NC and the more
permissive CC BY, it's between CC BY-NC and a non-copyleft license. So we
might just end up with less content under a free license. I'm not sure if
conceptual purity is worth it.

~~~
tsahyt
I completely agree with you. When I'm not hacking, I'm a musician. I'm
currently beginning work on an album and thought about putting it under a free
license. However, this album will roughly be half a year of full-time work
(yes, that kind of work can be horribly time consuming), since I'm doing
everything myself, from start to finish. This is why I plan on selling it,
most likely on a donation basis. The free license doesn't keep me from doing
so while still providing all the niceties of copyleft licenses.

There's just one thing: I don't want others to profit from my work. Listeners
can get the album from wherever they want, do whatever they want to it or with
it, I don't care. I suspect that if they like it, they'll drop me some form of
donation and if they can't afford it, I'm also happy with a simple "thank
you". But I definitely don't want my works to end up as cash in someone elses
pocket, so that's why would be choosing a CC-NC license. If that goes away,
I'll have to come up with my own license, or just use a non-copyleft license,
whatever is easier and cheaper for me.

Now don't get me wrong, I'm all for sharing. Music is _meant_ to be shared.
That's why I want to _encourage_ people to give it to their friends, hence the
free license.

There are quite a few similar use cases for a NC license, so we should rather
look into the issue of where "commercial" starts, rather than removing the NC
license and losing potential free works.

I hope that makes any sense at all.

~~~
tedunangst
There are other words you can use. You can grant people a nonexclusive license
to redistribute unmodified copies of the work without cost.

~~~
dalke
Which means that anyone using an advertising-based revenue model would allow
"others to profit from [tsahyt's] work", which is not what tsahyt wants.

For example, "without cost" would allow a radio station, or a streaming system
like Spotify, to play it without monetary compensation.

~~~
tedunangst
Yes. I was assuming he would want his music played on the radio. Maybe that's
a mistake.

~~~
dalke
I assume that the problem isn't so much being played on the radio but rather
not wanting "my works to end up as cash in someone elses pocket". For example,
being broadcast by the not-for-profit and no-paid-advertising college radio
station sounds like it will be okay.

------
greggman
While we're at it they need to remove the morality clause

 _In addition to the right of licensors to request removal of their name from
the work when used in a derivative or collective they don't like, copyright
laws in most jurisdictions around the world (with the notable exception of the
US except in very limited circumstances) grant creators "moral rights" which
may provide some redress if a derivative work represents a "derogatory
treatment" of the licensor's work._

It effectively makes CC pointless. The whole point of CC is to declare that
you don't need to ask the author's permission because he's already given it to
you but the moral clause means he really hasn't given you permission and can
deny you permission for any reason whatsoever.

That effectively makes CC no different as just plain all-rights-reserved where
you need to ask.

~~~
binarycrusader
I don't see that as a clause so much as a disclaimer. But the real trouble is
that some countries don't allow an author to surrender their moral rights. I
believe Germany is one of those.

So whether the CC license mentions it, in some countries it still matters.

~~~
rafitorres
> But the real trouble is that some countries don't allow an author to
> surrender their moral rights

Correct. This is what happened in Puerto Rico. In preparation for the Puerto
Rico version of CC, the University of Puerto Rico Cyberclinic did a
comparative study of moral rights across the world:
[http://mirrors.creativecommons.org/international/pr/moral-
ri...](http://mirrors.creativecommons.org/international/pr/moral-rights.pdf)
which is pretty informative.

~~~
luriel
"Moral rights" in this contexts seems to be a utterly Orwellian contraption.

There are few more fundamental rights than the right of free speech, and this
so called "moral rights" are utterly incompatible with free speech.

~~~
masklinn
> "Moral rights" in this contexts seems to be a utterly Orwellian contraption.

No more so than the right to privacy, or publicity rights in general.

> There are few more fundamental rights than the right of free speech

There's absolutely nothing effectively fundamental to free speech. Not even
_one_ country provides for unlimited and unrestrained free speech, yet most of
them seem to work well enough.

> and this so called "moral rights" are utterly incompatible with free speech.

I fail to see the relation, let alone the "utter incompatibility". Not that it
matters, as both are social constructs

~~~
davorak
> I fail to see the relation, let alone the "utter incompatibility".

Well in the USA flag burning is considered a form of free speech. After
reading parts of the linked document from Puerto Rico it seems like I would
not have legally be able to burn/destroy/deconstruct art that I have bought
from an artist under all circumstances with out the artists permission. From
the USA legal perspective this seems to limit free speech.

> Not that it matters, as both are social constructs

Some constructs are more effective then others at achieve specific goals, in
this sense it does matter.

~~~
vidarh
Your free speech in the US does not extend to the right to burn any specific
flag, but to the act of burning a flag as a political expression, so this
would only restrict your speech in cases where destroying a specific, unique
work is important to the speech.

Maybe there are specific cases where doing so is an important message, but
conversely giving you that right would give you the right to destroy the
speech of others.

How is giving you that right furthering free speech?

------
droithomme
Arguments that people shouldn't be able to license their own personal
creations however they like are anti-freedom.

Every year the arguments against artists having any control of their original
work get more and more absurd, and more vicious. I may write a story and not
mind if people repost it, but I don't want it used to promote Neo-Nazi
organizations, so I retain moral rights. Now I am told that doing so is
"Orwellian"? Best to avoid all this copyleft stuff altogether given that if
you try to retain any rights at all over your own work the groupthinkers will
attack you as being a fascist, when it is they who are the true fascists.

Only today R.E.M. announced they had a moral objection to Fox News using their
work "Losing My Religion" to attack the Democratic Party.

[http://www.hollywoodreporter.com/earshot/rem-demands-fox-
new...](http://www.hollywoodreporter.com/earshot/rem-demands-fox-news-stop-
losing-my-religion-368710)

Do they have the right to stop Fox from using their work to promote propaganda
they are deeply morally opposed to? Probably not, because the US doesn't
recognize moral rights of authors and artists as most European nations do.
This song is licensed under BMI licensing, which is available to anyone who
pays the standard fees. Should we say that R.E.M. are Orwellian fascists who
are opposed to free speech because they have publicly announced their
displeasure regarding this situation? To do so seems to me to be an insane,
crazed position to take, one which attacks the foundations of artistic
freedom.

~~~
nullc
ESR isn't arguing that you shouldn't be able to license your things however
you like. He's arguing that creative commons should not promote a license
which has surprising negative risks and that they shouldn't associate their
brand with a license which is bad for society compare to the most likely
alternatives.

------
ggchappell
Is it possible that the real problem is that the CC BY-NC license is not well
_explained_?

The actual license (CC BY-NC 3.0 [1]) says, in section 4b:

> You may not exercise any of the rights granted to You in Section 3 above [2]
> 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.

This is rather more precise than just saying "noncommercial". I'm not sure
whether it's precise enough or not ... but it seemed worth pointing out.

[1] <https://creativecommons.org/licenses/by-nc/3.0/legalcode>

[2] These rights are the right to reproduce the work, to create adaptations of
it, and to distribute or publicly perform the work or adaptations of it.

------
lucb1e
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.)

------
confoosed
Here's what's considered harmful, assuming you actually have concerns about
whatever it is you're licensing[1]:

using a license that is a cut and paste job (i.e. you took it from the web, or
some other source; i.e. it was not drafted for you and your work
specifically).

1\. If you don't really care much about what you're licensing, the license
doesn't really matter. Probably 99% of programs fit this category. With "99%"
of programs, no one gets wealthy, no one gets sued, the license has no real
impact on anything, life goes on as if there had never been a license. And in
most cases no one even reads these licenses. Hence things like the "shareware"
license, the "beerware", the "dowhatthefuckyouwantto" license, the GPL,
"Copyleft", "Ty Coon", and so on. These are mocking the entire practice of
licensing. There's a reason for that.

And for many years even the ones who do care about licensing, e.g. Microsoft,
would have licenses that contained unenforceable terms. But how many Windows
users cared about reading a license?

If you really cared about licensing your software (e.g. you thought someone
might get wealthy from the software, or someone might get sued), then you'd
spend a few bucks to have a lawyer draft a license for you, specifically.

And if users really cared about the licenses they were agreeing to, they'd
probably complain. Because some of the licenses, the terms they contain, are
beyond unreasonable. They are so one-sided as to be unenforceable.

It's amusing how programmers who post comments on the web are so tuned in to
licenses, but in reality they spend little effort/money when it comes to
licensing. And that's OK, because with "99%" of software programs, it does not
matter. It's irrelevant. No one gets wealthy, no one gets injured, no one
sues. It's neither here nor there. Some cut and pasted text that no one reads
is good enough.

But licenses do make a great subject for programmer chatter on the web. It
never stops.

Truthfully, in the context of the web, at the end of the day, the license is
not nearly as important as whether someone is going to sue. Because if she
really wants to sue, and has the means to do so, a copy and pasted license is
probably not going to stop her.

Food for thought.

Public domain.

------
hollerith
I am going to go off-topic a little bit and comment on the application of CC
and similar licenses to TEXT specifically.

Although I am a big fan of open-source licenses for code and open to the
possibility that they will do good when applied to photographs, animations and
videos, I doubt that applying Creative Commons licenses to TEXT has done more
good than harm.

Despite efforts by Google to counteract them, I still waste a little time
every week or so exploring Google hits that turn out to be SEO spammers re-
using Wikipedia's CC-licensed text. And I do not see enough benefits to offset
that sort of harm. In general, it seems to me that it harms readers when
readers are subjected to text that has been re-used for some purpose that
might differ drastically from the purpose or context of the original author of
the text. I would prefer it if people who did not make the effort to put
something in their own words did not even have the ability to put text onto my
computer screen. Of course, there is no way to achieve that, but stopping the
CC-licensing of text would cut down on it.

Certainly, there needed to be some way to assure contributors to, e.g.,
Wikipedia that Wikipedia would not monopolize their contributions for selfish
or stupid ends, but I do not think a CC license (or the GFDL used before that)
was anywhere near the optimal way to do that.

Maybe I should not state my opinion without having taken a close look at the
effect of CC and similar licenses on textbooks and technical manuals, but I
tend to think it is time to stop imploring WRITERS to CC-license their TEXT.

~~~
mcherm
Part of the benefit is the PRESENCE of that Wikipedia text.

I haven't contributed much to Wikipedia, but what little I DO contribute
wouldn't be there if Jimmy Wales owned it all. Instead, it is available for
anyone to reuse... for good OR for bad.

For instance, although I think Conservapedia is a stupid idea done by stupid
people, the fact that they CAN fork it and create their own is important. In
the (unlikely) event that Wikipedia is "taken over" by malign influences (for
instance: sells out to the largest bidder, who starts exercising editorial
control), I would want to make my own "Conservapedia"-like copy.

I completely disagree with you that rewriting is so easy. I couldn't rewrite
Wikipedia, could you? Could any 1000 people in the world?

Forking an open-source project is quite rare, and usually a sign that the
community has failed. But sometimes it is the only means to save the project;
LibreOffice stands out as an example. The EXISTENCE of that option (even if
almost never exercised) is a powerful force of its own, and the same is true
of text as is true of code.

~~~
mcguire
" _I haven't contributed much to Wikipedia, but what little I DO contribute
wouldn't be there if Jimmy Wales owned it all. Instead, it is available for
anyone to reuse... for good OR for bad._ "

Does anyone remember CDDB?

~~~
hollerith
Yes. I would call that an example where a CC license would have been better.

------
michaelhoffman
> 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.

I just don't particularly care about enabling people to use my work gratis for
“cash transactions” _or_ “for profit”. These people can contact me for a paid
license. Or they can create a substitute themselves, no skin off my back.

------
danso
I agree that NC is confusing but I put it on all my Flickr photos that I
share. If someone asks me for permission to print in a commercial context, I
usually grant it, but here's why I do NC:

1) If it's a company that has money and is all to ready to give me some, I'll
gladly take it.

2) If it's someone, such as an author who wants a photo to illustrate their
book, I may not ask for money but I like knowing who is using my photo in that
context.

3) I know I'm not at fault if someone misinterprets CC as "the original
photographer acquired the rights to use the identifiable people in any
commercial contexts", but I still want to avoid as much as possible being
drawn into this kind of snafu: [http://www.smh.com.au/news/technology/virgin-
sued-for-using-...](http://www.smh.com.au/news/technology/virgin-sued-for-
using-teens-photo/2007/09/21/1189881735928.html)

~~~
petercooper
As someone who _uses_ Creative Commons-licensed content from time to time,
I've tended to steer clear of NC because of the confusion too.

A common interpretation (and the one I used to use myself) was that the non-
commercial protection was meant to cover use of content as a fundamental piece
of a commercial venture. So a photo on a t-shirt, a song being sold on a
compilation CD, etc. But using a photo within the context of a blog post on a
commercial blog would be _ok_.

It seems, though, another interpretation is that _any_ usage that's even
vaguely related to a commercial interest is verboten. And since no-one has
drawn the line in the sand on this, I'll steer clear of NC stuff now unless it
really is a hobby project.

~~~
akldfgj
> But using a photo within the context of a blog post on a commercial blog
> would be ok.

This is clearly forbidden by NC.

~~~
petercooper
Has the wording changed? Because the CC were having this argument amongst
themselves for a long time due to it _not_ being obvious.. they even opened
the floodgates and asked content creators to help clear it up for them. It
would be great if they had finally resolved it.

