Has Creative Commons become ‘inevitable’?

(This is Part I of a series I’m drafting as I organise my thoughts around this topic)

Campbell's Soup Cans by Andy Warhol, 1962. Displayed in Museum of Modern Art in New York. Source: Wikipedia

I remember sitting in a Creative Commons staff meeting as a volunteer in late 2003 hearing Lawrence Lessig say that CC should be like Campbell’s Soup: we should make every possible type of license that people want. But a few years later, CC has consolidated its license offering to reflect just three license choices (do you want to allow commercial use? do you want to allow derivatives? if yes, do you want to require that those derivatives be made available under share-alike terms?). In 2007, CC ‘retired’ the Sampling License and the Developing Nations License due to low demand and, perhaps more importantly, pressure from the Free Software Foundation who complained that these were not “free” licenses since they did not permit ‘worldwide noncommercial verbatim sharing’. In around 2005/6 (there isn’t an exact date because I don’t think anyone actually made an announcement) the organisation decided not to advance the CC Education License – predominantly because certain vocal individuals believed that educational uses should be wrapped up in all CC licenses (you can find the mailing list archives from that discussion here).

CC had very rational reasons for consolidating and limiting the number of licenses offered. Licenses are complicated to understand: fewer choices mean that it’s easier not to get confused; fewer choices mean fewer products to explain and support. In my current research on the Tor project and anonymity tools I came across a wonderful paper by Roger Dingledine and Nick Matthewson describing just this tradeoff. The paper, aptly called ‘Anonymity loves company: usability and the network effect’ describes how usability affects privacy in the sense that ‘even if you were smart enough and had enough time to use every system perfectly, you would nevertheless be right to choose your system based in part on its usability for other users’. These problems of scale and usability impact a great number of online projects because they need to reduce the number of options in order to consolidate a large number of users/content, but must also ensure that there is enough diversity of options (and further options as they learn more about tackling a certain problem) to enable growing usability. Increasing options and making the network more diverse will, in turn, dilute the numbers and thus the value of the network to users, thus decreasing the numbers of users.

It is also important to understand the political landscape as the two big players in open content licenses at the time – the Free Software Foundation and Creative Commons – battled it out in a war over who would control the ultimate meaning of the term ‘openness’. CC got the idea for its licenses back in 2002 from the FSF’s GNU-GPL but injected two key ingredients into the licensing offering that the FSF hadn’t dealt with very well: 1. usability (CC made it easier to license your work and easier to discover works in the pool) and 2. choice (I mistakenly used to believe that the difference was that CC enabled users to choose their conditions while FSF had only ‘one version of freedom’ but now I recognise that the choices were just different and that CC gave a better illusion of choice than the FSF did).

In the days before Wikipedia moved from the FSF’s GNU-FDL to the CC BY SA license, the FSF was definitely in the lead of this battle. CC could show few examples of the value that comes from pooling CC-licensed materials over time into a high value collaborative product (most of their licensors were – and still are – stand-alone entities or individuals who draw successfully from the pool to create new works). By compromising with the FSF and successfully negotiating the move by Wikipedia to adopt CC licenses by making the GFDL and BY-SA licenses compatible, CC was able to gain the upper hand and radically boost its identity as the default open license provider.

The problem comes in when we start thinking that this is the only way to license materials – when it seems inevitable that this is the only way to build a space distinct from the failures of copyright on the Internet without considering the innumerable options available to builders of these kinds of products as they construct these artifacts of politics. The result is that CC starts to look like the hammer in the ‘law of the instrument‘ with the addition that when you think all you have is a hammer, then every problem looks like a nail. I’m starting to see many examples of this as other standards (like html5) are starting to build in rights expression metadata, but an obvious place where this became clear was in the furore over Facebook changing their terms to “appear” (it wasn’t really the case, said Facebook) that they were taking ownership of all the material on their users’ pages in 2009.

Alongside the thousands who protested the move at the time, a group of Creative Commons volunteers started a group asking Facebook to allow Facebook users to license their content under CC. Sounds reasonable, right? Here’s some content you’ve produced – here’s a way for you to control its use. Reasonable, that is, until you start thinking about what the problem really is here. After one of the group members created a CC license widget for users to put on their pages, I put one on my page in solidarity because I felt like Facebook shouldn’t be the only one to be given a license to use my stuff. But soon afterward I took it off when I recognised that the problem had nothing to do with copy rights and everything to do with control over private information. Unlike a photograph of a tree that I took, was proud of, found useful and licensed under CC because I thought others might find useful too, the ‘content’ of my Facebook page is not really ‘content’ in the copy right sense at all. They have a totally different audience, different norms and different objectives: I’m not on stage on Facebook; I’m at a private party with my friends and co-workers. The problem that users were responding to was not the problem that Facebook was taking worldwide royalty-free license to use your work; it was the fear that your messages were out of your control, that Facebook could take them out of the context of that private party and put them on a stage somewhere. That was frightening for people because it meant that they were no longer in control of messages that were never intended on being ‘on the stage’ in the way that Creative Commons licenses help to facilitate.

Part II coming soon!