On 9 Oct 06, at 23:36, Florian Cramer wrote: > [Leider komme ich wahrscheinlich nicht mehr dazu, meinen Text ins > Deutsche zu übersetzen, und bitte daher um Nachsicht auf dieser Liste. > -F]
es ware aber toll, diesen text auf deutsch zu haben. freiwillige vor ... a. > > > The Creative Common Misunderstanding > > > Lately, the growing popularity of the Creative Commons licenses has > been counterpointed by a growing amount of criticism. The objections > are substantial and boil down to the following points: that the Creative > Commons licenses are fragmented, do not define a common minimum standard > of freedoms and rights granted to users or even fail to meet the criteria > of free licenses altogether, and that unlike the Free Software and > Open Source movements, they follow a philosophy of reserving rights of > copyright owners rather than granting them to audiences. Yet it would > be too simple to only blame the Creative Commons organization for those > issues. Having failed to set their own agenda and competently voice > what they want, artists, critics and activists have their own share in > the mess. > > In his paper "Towards a Standard of Freedom: Creative Commons and the > Free Software Movement," free software activist Benjamin Mako Hill > analyzes that "despite CC's stated desire to learn from and build upon > the example of the free software movement, CC sets no defined limits and > promises no freedoms, no rights, and no fixed qualities. Free software's > success is built upon an ethical position. CC sets no such standard."^1 > In other words, the Creative Commons licenses lack an underlying ethical > code, political constitution or philosophical manifesto such as the Free > Software Foundation's Free Software Definition or Debian's Social Contract > and the Open Source Initiative's Open Source Definition.^2 Derived from > each other, these three documents all define free and open source software > as computer programs that may be freely copied, used for any purpose, > studied and modified on source code level and distributed in modified > form. The concrete free software licenses, such as the GNU General Public > License (GPL), the BSD license and the Perl Artistic License, are not > ends in themselves, but only express individual implementations of those > constitutions in legal terms; they translate politics into policies. > > Such politics are absent from the Creative Commons. As Mako Hill points > out, the "non-commercial" CC licenses prohibit use for any purpose, the > "no-derivatives" licenses prohibit modification, and the CC "Sampling > License" and "Developing Nations License" even disallow verbatim > copying. As a result, none of the user rights granted by free and open > source software are ensured by the mere fact that a work has been released > under a Creative Commons license. To say that something is available > under a CC license is meaningless in practice. Not only does the CC symbol > look like a fashion logo, it also isn't more than one. Richard Stallman, > founder of the GNU project and author of the Free Software Definition, > finds that "all these licenses have in common is a label, but people > regularly mistake that common label for something substantial."^3 Yet > some if only vague programmatic substance is expressed in CC's motto > "Some rights reserved." Beyond being, quote Mako Hill, a "relatively > hollow call," this slogan factually reverses the Free Software and Open > Source philosophy of reserving rights to users, not copyright owners, > in order to allow the former to become producers themselves. > > While Mako Hill embraces at least a few of the CC licenses, such as the > ShareAlike License under which his own essay is available, Stallman finds > it a "self-delusion to try to endorse just some of the Creative Commons > licenses, because people lump them together; they will misconstrue any > endorsement of some as a blanket endorsement of all."^4 According to an > entry on his weblog, Stallman had "asked the leaders of Creative Commons > privately to change their policies, but they declined, so we had to part > ways."^5 The Debian project even considers all CC licenses non-free and > recommended, in 2004, that "authors who wish to create works compatible > with the Debian Free Software Guidelines should not use any of the > licenses in the Creative Commons license suite,"^6 mostly because their > attribution clause limits modifications, because of restrictions on the > Creative Commons trademark and ambiguously worded anti-"Digital Rights > Management" (DRM) provisions that could be interpreted as prohibiting > distribution over any encrypted channel, including for example PGP-encoded > E-Mail and anonymizing proxy servers. > > Whatever stance one may adopt, the name "Creative Commons" is misleading > because it doesn't create a commons at all. A picture released, for > example, under the Attribution-ShareAlike license cannot legally be > integrated into a video released under the Attribution-NonCommercial > license, audio published under the Sampling License can't be used on its > soundtrack. Such incompatible license terms put what is supposed to be > "free content" or "free information" back to square one, that is, the > default restrictions of copyright - hardly that what Lawrence Lessig, > founder of the Creative Commons, could have meant with "free culture" > and "read-write culture" as opposed to "read-only culture." In his blog > entry "Creative Commons Is Broken," Alex Bosworth, program manager at > the open source company SourceLabs, points out that "of eight million > photos" posted under a CC license on Flickr.com "less than a fifth > allow free remixing of content under terms similar to an open source > license. More than a third don't allow any modifications at all."^7 The > "principle problem with Creative Commons," he writes, "is that most of > the creative commons content is not actually reuseable at all." > > While these problems may at least hypothetically be solved through > improvements of the CC license texts - with the license compatibility > clauses in the draft of the GNU GPL version 3 as a possible model -, > there are farther-reaching issues on the level of politics as opposed to > merely policies. CC's self-definition that "our licenses help you keep > your copyright while inviting certain uses of your work - a `some rights > reserved' copyright" translate into what the software developer and Neoist > Dmytri Kleiner phrases as follows: "the Creative Commons, is to help `you' > (the `Producer') to keep control of `your' work." Kleiner concludes that > "the right of the `consumer' is not mentioned, neither is the division of > `producer' and `consumer' disputed. The Creative `Commons' is thus really > an Anti-Commons, serving to legitimise, rather than deny, Producer-control > and serving to enforce, rather than do away with, the distinction between > producer and consumer."^8 Citing Lessig's examples of DJ Dangermouse's > "Grey Album" and Javier Prato's "Jesus Christ: The Musical" - "projects > torpedoed by the legal owners of the music used in the production of > the works" - Kleiner sharply observes that "the legal representatives > of the Beatles and Gloria Gaynor could just as easily have used Creative > Commons licences to enforce their control over the use of their work." > > The distinction between "consumers" and "producers" couldn't be more > bluntly stated than on CC's home page. It displays, on its very top, > two large clickable buttons, one labelled "FIND Music, photos and more," > the other "PUBLISH Your Stuff, safely and legally," the former with a > down arrow, the latter with an up arrow in its logo.^9 The small letters > are no less remarkable than the capitals. Upon first glance, the adverbs > "safely and legally" sound odd and like material for a future cultural > history museum of post-Napster and post-9/11 paranoia. But above all, > they name and perpetuate the fundamental misunderstanding artists seem > to have of the Creative Commons: Free licenses were not meant to be, and > aren't, a liability insurance against getting sued for use of third-party > copyrighted or trademarked material. Whoever expects to gain this from > putting work under a Creative Commons license, is completely mistaken. > > Artists are desperately looking for a solution to a problem that > ultimately resulted from their own efforts of redefining art. When > art was granted, in Western cultures at least, an autonomous status, > artists were - to a moderate degree - waived from a number of legal > norms. Kurt Schwitters was not sued for collaging the logo of German > Commerzbank into his "Merz" painting which in turn yielded his "Merz" > art. Neither did Andy Warhol receive injunctions for using Coca Cola's > and Campbell's trademarks. As long as these symbols remained inside the > art world, they did not raise corporate eyebrows. Experimental artists > embraced the Internet just because it did away with the separation of > white cubes - in which logos and trademarks were safe from being mixed > up with the original ones - and the outside world. Mainly thanks to the > Internet, artistic simulations of corporate entities were believable for > the first time. The Yes Men could pose as the World Trade Organisation > and get invited to World Economic Forum as WTO representatives, > 0100101110101101.org could tactically disguise themselves as the Nike > company. Older artistic simulations like Res Ingold's "Ingold Airlines" > were not only transparent and clumsy in comparison, but also on the safe > grounds of an art system with little or no interference of corporate > lawyers. But ever since the World Wide Web, file sharing and cheap > or free authoring software tore down walls between art and non-art > practice, producers and consumers, former consumers were held liable as > producers, and artistic production became subject to non-art world norms, > as obvious in the FBI investigations of Steve Kurtz and ubermorgen.com > for bioterrorism, respectively tampering the U.S. presidential elections. > > Previous artistic critiques of corporate and intellectual ownership > were much less efficacious even where they were programmatically more > radical. Between 1988 and 1989, a series of countercultural "Festivals > of Plagiarism," organized by Stewart Home, Graham Harwood and others, > struggled with wide gaps between radical anti-copyright rhetoric and > an artistic practice limited mostly to photocopied mail art work. John > Berndt, a participant of the London Festival of Plagiarism in London, > left with the impression that "a repetitive critique of 'ownership` > and 'originality` in culture was juxtaposed with collective events, > in which a majority of participants [...] simply wanted to have their > 'aesthetic` and vaguely political artwork exposed,"^10 making fellow > Neoist tENTATIVELY, a cONVENIENCE conclude that "Festivals of Recycling > might have been more accurate descriptions" for the events: "By virtue > of calling the act of reusing and changing previously existing material > (not even always with the intention of critiqueing said material) > 'Plagiarism` the appearance of being 'radical` could be given to people > whose work was otherwise straight out of art school teachings."^11 > > Today, similar gaps and misunderstandings exist between copyleft activists > and artists who just seek to legitimize their use of third-party > material. When Lawrence Lessig characterizes the Creative Commons as > "'fair use`-plus: a promise that any freedoms given are always in > addition to the freedoms guaranteed by the law,"^12 this is technically > correct, but nevertheless misunderstandable, especially for artists > who aren't legal experts. Putting a work under a CC license - or even > a non-ambiguously free GNU or BSD license - means to grant rather than > to gain uses in addition to standard fair use. The Creative Commons do > not solve the problem of how not to get sued by Coca Cola or Campbell's > at all. Non-free copyrighted material cannot be freely incorporated into > one's work no matter what license one choses. Even worse, the opposite is > true: copyright owners are most likely to categorically refuse clearance > for anything that will be put into free circulation because the license of > the work incorporating their's would effectively relicense the former. If, > for example, the Corbis corporation would permit the photograph of > Einstein sticking out his tongue - for which it holds the rights - to > be reproduced in a freely licensed book, it would free the picture for > anyone else's use as well. Since this can hardly be expected from the > Bill Gates-owned company, free licensing often restrains rather than > expands one's possibilities of using third-party material. > > This example reveals a crucial difference between software development and > artistic practice: Programming can sustain itself on its own, self-built > library of reusable work, but art hardly so. The GNU copyleft works on > the premise that modifications are also contributions. If, for example, > a company like IBM choses to modify the Linux kernel to run on its own > servers, the GNU license forces it to give back the added code to the > development community. And the more code is available as free software, > the higher the incentive for others to simply build on existing free code > libraries and give back changes rather than building a new program from > scratch. This explains why even for computer companies, free software > development can make more economic sense than the close source commercial > model. In addition, free software development profits from a difference > between source code and perceivable appearance that doesn't have an exact > equivalent in most artistic work: Programs can be written that look and > behave similar or identical to proprietary counterparts as long as they > don't use proprietary code and do not infringe on patents. This way, > AT&T's Unix could be rewritten as BSD and GNU/Linux, and Microsoft > Office could be cloned as OpenOffice. Even patents which could spoil > such appropriations aren't as internationally universal and not remotely > as long-lasting as copyright. In other words, free software development > could be an "appropriation art" without copyright infringement. > > The same isn't possible for most artists, however, and it makes little > sense for them to restrict their uses to material whose copyright > has either expired or that has been released under sufficiently free > licenses. The Coca Cola logo can't be cloned as a copylefted "FreeCola" > logo, and it would be pointless for the YesMen to pose as an "OpenWTO" > or for 0100101110101101.org to have run as "GNUke" instead of Nike. If > even harmless collaging, sampling and quoting becomes risky because of > media industrial Internet copyright paranoia and whole business models > based on injunctions and lawsuits, it is a political matter of fair use, > not of free licenses. In the worst case, free licenses, all the more > fluffy and pseudo-free ones like the Creative Commons, could be used > to legitimize new restrictions of fair use legislation, or even its > abolition altogether, with the alibi that the so-called "ecosystem," > or ghetto, of more or less freely licensed work provides enough fair > use for those who bother to care.^13 > > It is not hard to bash the Creative Commons for being an organization run > with little understanding of the arts, and not even a good understanding > of free software philosophy. On the other hand, artists themselves have > failed to voice themselves what they want. The exceptions are few and > rather marginal, such as the anti-copyright philosophies and politics of > Lautréamont, Woody Guthrie (who, according to Dmytri Kleiner, released > his songbook with the license that "anybody caught singin' it without > our permission, will be mighty good friends of ours, cause we don't > give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it"), > Lettrists, Situationists, Neoists, Plunderphonics musicians and some > Internet artists including the French artlibre.org collective whose > "Free Art License" predates the Creative Commons by two years.^14 > > A team of lawyers whose work consists of creating, as Bosworth puts it, > "low cost legal templates," the Creative Commons organization has simply > listened to all kinds of artists and activists, trying to do justice to > diverse and sometimes contradictory needs and expectations, with licenses > "designed to give artists choice" (Mako Hill) rather than prioritizing > free use and reuse of information. In contrast, Free Software and Open > Source are, like any human and civil rights effort, universalist at their > core, with principles that may be neither negotiated, nor culturally > relativized. > > If someone is to blame for the fact that artists, political activists > and academics from the humanities have largely failed to recognize those > essentials, then it is Eric S. Raymond, founder of the "Open Source > Initative" (http://www.opensource.org), the group that coined the term > "Open Source" in 1998. The main advantage of the term "Open Source" over > "Free Software" is that it doesn't merely refer to computer programs, > but evokes broader cultural connotations.^15 For most people with > artistic backgrounds, GNU's "Free Software" sounded too confusingly > similar to (close-source) "freeware" and "shareware." "Open Source" > sparked an all the richer imagination as Raymond didn't simply pitch it > as an alternative to proprietary "intellectual property" regimes, but > as a "Bazaar" model of open, networked collaboration. Yet this is not at > all what the Open Source Initiative's "Open Source Definition" says or > is about. Derived from Debian's "Free Software Guidelines," it simply > lists criteria licenses have to match in order to be considered free, > respectively open source. The fact that a work is available under such > a license might enable collaborative work on it, but it doesn't have to > by definition. Much free software - the GNU utilities and the free BSDs > for example - is developed by rather closed groups and committees of > programmers in what Raymond calls a "Cathedral" methodology. Conversely, > proprietary software companies such as Microsoft may develop their > code in distributed "Bazaar" style. Nevertheless, the homepage of > http://www.opensource.org states that the "basic idea behind open source" > is about how "software evolves," "at a speed that, if one is used to the > slow pace of conventional software development, seems astonishing," thus > producing "better software than the traditional closed model." Regardless > which position one takes in the philosophical and ideological dispute > between "Free Software" and "Open Source," the self-characterization > of Open Source as a development model mixes up cause and effect, being > inconsistent with what the Open Source Definition qualifies as Open > Source, i.e. software that meets its standards of free use. > > Given how "Open Source" has been propagated as a model of networked > collaboration instead of user rights or free infrastructures, the > gap between the lip-service paid to it in the arts and humanities > and the factual use of free software and copylefts comes to little > surprise. "Cultural" free software conferences whose organizers and > speakers run Windows or the Mac OS on their laptops continue to be > the norm. With few exceptions, art education hardly ever involves free > software, but is tied to proprietary software tool chains. Yet - often > vague and half-informed - "Open Source" references abound in media > studies and electronic arts writing. > > The problem is not so much that people do not use free operating systems, > but that software-political correctness anxiety prevents a more honest > critical discourse. A debate on "why free software doesn't work > for us" would be more productive for its development than the current > hypocrisy. Recent discussions on why, for example, free software culture > involves disproportionally few women (even in comparison to proprietary > software development) at least begin to tackle some of the issues. > > Productive critique, after all, is needed. Eight years after the coinage > of "Open Source", Raymond's Hegelian claims of superior development > methodologies sound increasingly hollow. Free software hasn't displaced > proprietary software at all and seems, despite its success on servers > and in embedded systems, to be unlikely to take over mainstream personal > computers any time soon. Free software, it seems, has its strength in > building software infrastructure: kernels, file systems, network stacks, > compilers, scripting languages, libraries, web, file and mail servers, > database engines. It lags behind proprietary offerings, for example, > in conventional desktop publishing and video editing, and, as a rule of > thumb, in anything that isn't highly modularized or used a lot by its > own developer community. The closer the software is to the daily needs > and work methods of programmers and system administrators, the higher > typically its quality. > > Similar rules seem to apply to free information, respectively "Open > Content" development. The model works best for infrastructural, general, > non-individualistic information resources, with Wikipedia and FreeDB (and > lately MusicBrainz) as prime examples. Similarly, the cultural logic of > sounds and images circulating under CC licenses is largely that of stock > music, stock photography and clip art, regardless the fact that current > CC licenses mostly fail to permit their "mashups," boiling down to little > more than "Web 2.0" lifestyle logos. Beyond infrastructural information, > the value of free licensing is somewhat doubtful. Experimental, radical > art and activism that does not play nice with third-party copyrights and > trademarks can't be legally released and used under whatever license > anyway. Its work should rather - and explicitly - be released into > the public domain with, quote jodi, "all wrongs reversed" and, quote > Kleiner, "all rights detourned under the terms of the Woody Guthrie > General License Agreement." For professional artists, this simply means > to acknowledge the reality of contemporary art economics: that artists, > with the exception of a handful of stars, no longer live from producing > material goods (for which copyright granted lifetime monopolies, or at > least the illusion of continuous revenue streams), but like 17th century > project entrepreneurs from commissioned projects whose material products > have little or no market value by themselves. > > Copyright, having turned from a regulation into a subsidy of publishing > industries, is the 21st century equivalent of drug legislation. Everyone > knows that it is obsolete, dysfunctional, and depriving people of > their rights; absurd wars are foughts in its name. The simple fix is to > abolish it. > > > Florian Cramer, October 2006 > > _____________________________________________________________________________ > > > Footnotes: > > ^1 Benjamin Mako Hill, Towards a Standard of Freedom: Creative Commons > and the Free Software Movement, http://www.advogato.org/article/851.html > > ^2 http://www.gnu.org/philosophy/free-sw.html, > http://www.debian.org/social_contract, > http://www.opensource.org/docs/definition.php > > ^3 http://www.linuxp2p.com/forums/viewtopic.php?p=10771 > > ^4 http://www.linuxp2p.com/forums/viewtopic.php?p=10771 > > ^5 http://www.fsf.org/blogs/rms/entry-20050920.html > > ^6 http://lists.debian.org/debian-legal/2004/07/msg01193.html > > ^7 > http://www.sourcelabs.com/blogs/ajb/2006/02/creative_commons_is_broken.html > > ^8 Dmytri Kleiner, The Creative Anti-Commons and the Poverty of Networks, > http://info.interactivist.net/article.pl?sid=06/09/16/2053224 > > ^9 http://creativecommons.org/images/find.gif, > http://creativecommons.org/license > > ^10 John Berndt, Proletarian Posturing and the Strike that Never Ends, > SMILE magazine, Baltimore, 1988 > > ^11 tENTATIVELY, a cONVENIENCE, History Begins where Life Ends, > self-published pamphlet, Baltimore 1993 > > ^12 http://creativecommons.org/weblog/entry/5681 > > ^13 This scenario isn't too far-fetched considering Lessig's > recent advocacy of the non-open file format Adobe/Macromedia's > Flash which he calls a "crucial tool of basic digital education > in a free culture" (quotation translated from the German > article http://www.heise.de/newsticker/meldung/78278/, see also > http://lwn.net/Articles/199877/) Since proprietary file formats cannot > be universally accessed and lock information into technology whose > availability is at the mercy of a single vendor, they restrain fair use. > > ^14 http://artlibre.org/licence/lal/en/ > > ^15 It is not coincidental, for example, that the term "Open Content" > and the web site http://www.opencontent.org was launched in 1998 only few > months after the first propagation of "Open Source," until its founder > David Wiley sacked the initiative in 2004 in order to - surprisingly or > not - become a director of Creative Commons. > > -- > http://cramer.plaintext.cc:70 > gopher://cramer.plaintext.cc > >
-- rohrpost - deutschsprachige Liste zur Kultur digitaler Medien und Netze Archiv: http://www.nettime.org/rohrpost http://post.openoffice.de/pipermail/rohrpost/ Ent/Subskribieren: http://post.openoffice.de/cgi-bin/mailman/listinfo/rohrpost/