I recently came across a music startup called Airborne Music, which touts two features: a business model based on “subscribing to an artist” for US $1/month, and music distributed under Creative Commons licenses. Like other music services that use Creative Commons, Airborne Music appeals primarily to indie artists who are looking to get exposure for their work. This got me thinking about how — or whether — Creative Commons has any real economic value for creative artists.
I have been fascinated by a dichotomy of indie vs. major-label music: indie musicians value promotion over immediate revenue, while for major-label artists it’s the other way around. (Same for book authors with respect to the Big 6 trade publishers, photographers with respect to Getty and Corbis, etc.) Back when the major labels were only allowing digital downloads with DRM — a technology intended to preserve revenue at the expense of promotion — I wondered if those few indie artists who landed major-label deals were getting the optimal promotion-versus-revenue tradeoffs, or if this issue even figured into major-label thinking about licensing terms and rights technologies.
When I looked at Airborne Music, it dawned on me that Creative Commons is interesting for indie artists who want to promote their works while preserving the right (if not the ability) to make money from them later. The Creative Commons website lists ten existing sites that enable musicians to distribute their music under CC, including big ones like the bulge-bracket-funded startup SoundCloud and the commercially-oriented BandCamp.
This is an eminently practical application of Creative Commons’s motto: “Some rights reserved.” Many CC-licensing services use the BY-SA (Attribution-Share-Alike) Creative Commons license, which gives you the right to copy and distribute the artist’s music as long as you attribute it to the artist and redistribute (i.e. share) it under the same terms. That’s exactly what indie artists want: to get their content distributed as widely as possible but to make sure that everyone knows it’s their work. Some use BY-SA-NC (Attribution-Share-Alike-Noncommercial), which adds the condition that you can’t sell the content, meaning that the artist is preserving her ability to make money from it.
It sounds great in theory. It’s just too bad that there isn’t a way to make sure that those rights are actually respected. There is a rights expression language for Creative Commons (CC REL), which makes it possible for content rendering or editing software to read the license (in XML RDFa) and act accordingly. As a technology, the REL concept originated with Mark Stefik at Xerox PARC in the mid-1990s; the eminent MIT computer scientist Hal Abelson created CC REL in 2008. Since then, the Creative Commons organization has maintained something of an arms-length relationship with CC REL: it describes the language and offers links to information about it, but it doesn’t (for example) include CC REL code in the actual licenses it offers.
More to the point, while there are code libraries for generating CC REL code, I have yet to hear of a working system that actually reads CC REL license terms and acts on them. (Yes, this would be extraordinarily difficult to achieve with any completeness, e.g., taking Fair Use into account.)
Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States. For example, some BY-SA-licensed music tracks may end up in mashups. How many of those mashups will attribute the sources’ artists properly? Not many, I would guess. Conversely, what really prevents someone who gets music licensed under ND (No Derivative Works) terms from remixing or excerpting in ways that aren’t considered Fair Use? Are these people really afraid of being sued? I hardly think so.
This trap door into the legal system, as I have called it, makes Creative Commons licensing of more theoretical than practical interest. The practical value of CC seems to be concentrated in business-to-business content licensing agreements, where corporations need to take more responsibility for observing licensing terms and CC’s ready-made licenses make it easy for them to do so. The music site Jamendo is a good example of this: it licenses its members’ music content for commercial sync rights to movie and TV producers while making it free to the public.
Free culture advocates like to tell content creators that they should give up control over their content in the digital age. As far as I’m concerned, anyone who claims to welcome the end of control and also supports Creative Commons is talking through both sides of his mouth. If you use a Creative Commons license, you express a desire for control, even if you don’t actually get very much of it. What you really get is a badge that describes your intentions — a badge that a large and increasing number of web-savvy people recognize. Yet as a practical matter, a Creative Commons logo on your site is tantamount to a statement to the average user that the content is free for the taking.
The truth is that sometimes artists benefit most from lack of control over their content, while other times they benefit from more control. The copyright system is supposed to make sure that the public’s and creators’ benefits from creative works are balanced in order to optimize creative output. Creative Commons purports to provide simple means of redressing what its designers believe is a lack of balance in the current copyright law. But to be attractive to artists, CC needs to offer them ways to determine their levels of control in ways that the copyright system does not support.
In the end, Creative Commons is a burglar alarm sign on your lawn without the actual alarm system. You can easily buy fake alarm signs for a few dollars, whereas real alarm systems cost thousands. It’s the same with digital content. At least Creative Commons, like almost all of the content licensed with it, is free.
(I should add that I wear the badge myself. My whitepapers and this blog are licensed under Creative Commons BY-NC-ND (Attribution-Noncommercial-No Derivative Works) terms. I would at least rather have the copyright-savvy people who read this know my intentions.)
Copyright and Technology 
I agree with your fundamental premise that CC-licenses are really just “express[ions of] a desire for control, even if you don’t actually get very much of it.”
My next question, however, is this: compared to what? Isn’t precisely the same thing true of copyright generally? One can assert “some rights reserved” (e.g., Creative Commons) or one can assert “all rights reserved” (e.g., “full” copyright), but neither is remotely self-enforcing. In both cases, the artist/owner (or her agent) bears the burden of finding infringements and stopping them.
From where I stand, CC licenses are drafted quite competently. Persons improperly exceeding CC-licensing terms–like your example of mashup artists who fail to “attribute the sources’ artists properly”–could find themselves on the receiving end of a federal lawsuit as real as any leveled by the RIAA. The real difference is that (presumably small and resource-strapped) CC-licensing artists will be less likely to find and prosecute infringement than (probably bigger and more resource-ful) asserters of “full” copyright.
“Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States.” True. But that’s exactly how “all rights reserved” copyright functions too.
You have exposed the harsh reality of Creative Commons with this statement:
“… Creative Commons is a burglar alarm sign on your lawn without the actual alarm system. You can easily buy fake alarm signs for a few dollars, whereas real alarm systems cost thousands. It’s the same with digital content. At least Creative Commons, like almost all of the content licensed with it, is free.”
There is an alternative, and it doesn’t “cost thousands.” It’s iCopyright’s Article Tools + Syndication (www.icopyright.com). It doesn’t work for music files (today at least) but it has been in operation for 12 years and is used by leading b2b and news publishers for their textual content. It’s CC with a cash register. Publishers who place iCopyright’s article tools on their content can make it both freely available and monetize it with ads or real dollars. Publishers who use leading cms’s can deploy it for free in minutes.
Check it out.
I agree entirely with Joel here.
It would seem to me that the proper reading of the CC license is “all rights reserved” except as excluded by the CC license. That would allow individual downloads for personal use but still permit the musician to sue should a third party violate the “reservation” by not obtaining a commercial license or attributing the work to the extent used.
Your article seems to be pointed more towards whether the artist has the economic ability to enforce their rights. However, the legal situation is no different from any other garden variety copyright claim.
Paul Keating
Law.es
I also agree with Joel as far as his argument goes. The legal situation might be the same, but the practical reality is not the same at all. Lawsuits by indie artists — apart from being few and far between — are hardly “as real as any leveled by the RIAA” when the major content owners get legal representation that is high-powered and deeply experienced in pursuing copyright claims. Unless the plaintiff hits the jackpot by getting the EFF or Charlie Nesson to take the case pro bono, there is a huge difference.
Furthermore, big copyright owners have access to actual burglar alarms, such as the many that I have discussed in this blog. Not only do indie artists not have such access, but the folks at Creative Commons seem hell-bent on discouraging it as a matter of philosophy. Hence their arms-length relationship with CC REL as well as the CC+ scheme designed (as far as I can tell) to extend CC for commercial licensing.
I’ll quote from Robert Levine’s Free Ride: “Although the groups backed by Google have some smart ideas for reforming copyright, they also want to make the current laws impossible to enforce.”
Andrew,
Excuse me, but you aren’t offering burglar alarms. To extend the analogy, you’re offering tickets for house tours that come with digital cameras or video recorders. Creative Commons and commercial licensing are apples and oranges.
– bill.
Bill,
I understand that indie artists are not always the most well-healed. However, that was not really the issue. The issue was whether there were enforceable rights (the burglar alarm that rings). The CC license seems to be in line with an indie who wants to become known and then once known can deal more adeptly with the economics of retaining the their own IP litigation power-house. I don’t see any situation here where the artist holds fewer rights. I am still very much with Joel here.
Paul
“an indie who wants to become known and then once known can deal more adeptly with the economics of retaining the their own IP litigation power-house”? I would be flabbergasted if the folks who designed Creative Commons had this edge case in mind.
Nevertheless, you bring up an interesting point that refers back to my dichotomy of indies vs. majors. If I understand what you’re suggesting, it’s this: I’m an indie artist. I license my work with, let’s say, CC BY-NC-ND. I hit the bigtime, I’m famous, and I shift from promotion to revenue protection. I decide to revisit my earlier, pre-fame indie work and go after those people who used my stuff in a mashup or tried to sell it, let’s say as part of a compilation, without my permission. I have lawyers from Jenner or Proskauer or Mitchell Silverberg at my beck and call. Now that I’m famous and 90+% of the copies of my post-fame work around the world are probably illegal, why would I bother going after these people?
Bill–
iCopyright comes with Discovery, our content infringement detection service. In your analogy, it’s a silent alarm that the content owner can tune to a desired sensitivity and then take a variety or remedial actions.
You are right: Creative Commons and content licensing are apples and oranges. But they’re still both fruits. If content owners are not satisfied with the shortcomings of the apples, we offer oranges instead.
Bill,
You say: “Now that I’m famous and 90+% of the copies of my post-fame work around the world are probably illegal, why would I bother going after these people?”
Not sure how you get here. The “illegal” copies are only the ones in the mash-up in your example. The non-commercial copies are all legit under the CC.
Paul,
If I’m a million-selling musical artist, then I’m not going to be using CC anymore. That’s part of “shift[ing] from promotion to revenue protection.” I’m most likely going to be on a major label that licenses music conventionally.
It remains to be seen whether big-name artists can maintain their careers while licensing under CC. A few have tried it but there aren’t enough data points out there yet to know one way or another.
Just a note that CC today put out a call for input on the next version of the licence, so if you do see shortcomings, feel free to enumerate.
http://isoc-ny.org/p2/?p=2883
Creative Commons is simply a license to infringe copyrights and trademarks. It’s completely bogus. Mozilla has a CC License that says “All Other Rights Reserved”, so go figure.
What has happened is the ability to push buttons for worldwide control has created a mental civil war against the laws to be successful by those following the rules.
CC licenses are dangerous and undermine real copyright protection. It’s all very well for the (relatively few) people who actually understand the meaning of the words but from my experience most of the common folk who use the term glibly don’t understand it or haven’t even read it.
All CC is, is setting out in formal terms which rights you wish to reserve and don’t. It’s very helpful that competent wordsmiths are expressing the wishes in a clear manner but I’m finding more and more people thinking that it is more than a statement of personal intent and actually has some meaning or enforceability beyond that.
Bring CC into an international context where copyright law is at least attempting some kind of protection harmony and you soon see it as the thin veneer it actually is.
The US centric babbling of the pirates trying to find virtue in some kind of social egalitarianism between a non-existent community defined solely by being against the hegemony of “the man” and formalising it using such tools as CC actually removes individual responsibility for defining how you wish your creative output to be accessed and shared. CC is becoming more interested in itself than the rights it wishes to share or protect. Perhaps someone will come up with some truly effective wording which is readily understandable to an artist who today is more interested in creating than protecting. I’d copyright it I were them.
Can anyone tell me where paragraph 8(f) is in the CC deed? It seems to be missing. Also looking forward to an explanation of how it works with cover recordings when the artist did not write the song, and how it works with co-writers when only one writer wants to grant CC rights. I will just watch and learn now.
Peter,
Thanks for your comment. Maybe it’s the self-selecting nature of our readership, but I expected to be flamed over this article much more than I have been. (I guess the folks who read TechDirt and SlashDot just don’t come ’round here.)
I agree with a lot of what you say, but my view is a little different: I think that CC deserves a lot of credit for trying to make copyright law comprehensible to content creators, and to come up with relevant use cases, instead of just complaining about problems in copyright law. I don’t think what they are doing is “remov[ing] individual responsibility for defining how you wish your creative output to be accessed and shared” any more than the designer of a programming language “removes responsibility” of the programmer to write an application instead of using assembly language.
The issue I have with CC as an organization is their steadfast refusal to associate themselves and their work with anything having to do with content creators actually protecting their rights and getting paid. They don’t see the latter as part of their mission, and they are philosophically against the former in ways I’ve described. The philosophy boils down to this: you can do all kinds of wonderful things with technology except use it to enforce your copyrights, and (as you said it yourself) if you use it in that way, you’re just a tool of “the man.” As a technologist, my view is that the legal system itself (meaning the entire system, not just the laws) is inadequate for enforcing copyrights by itself.
Bill,
Hold on there. I am an avid reader of both sites, I really don’t see the point of your flame either as to Techdirt or slashdot.
More to the point as o the CC and its intentions. I have long seen their intentions as a way to permit content creators to waive certain of their “rights” otherwise automatically “created” by the current copyright laws (which as you know no longer require the affirmative act of registration). The CC license is nothing more than an intent to waive certain rights based upon certain uses. As such it requires no enforcement mechanism. The enforcement mechanism is already contained in the Copyright Act and applies as to all uses not expressly permitted in the CC license.
While you can perhaps justly argue that the language is not all that clear – certainly not a license for dummys, the same could be said (more aptly) for just about any license agreement, most of which these days read like insurance contracts (grant followed by exceptions and exceptions to exceptions).
WIth the Internet, we live in a day where we are constantly bombarded with licensing, TOS and TOUs that run on for page upon page and are often (if you care to read them) placed in a small box that would take 10’s if not 100′ of clicks to reach the bottom. Of course you could use CTRL “A” and paste it into a word file but that also runs pages. Most of us simply pass as we have neither the time nor patience to deal with it all – and as a result we simply click “I Agree”.
How many times have you read the new TOS presented with the umpteenth ITunes update?
If you want to add to the solution then propose a clear solution to change the CC license. However, just complaining about “whose side are they on anyway” and that they are not on “yours” is simply not adding anything constructive. Anyone can be a critic.
Paul,
First of all, I did not “flame” TechDirt and SlashDot. All I said was that their readers tend not to read this site, and I suggested that if they did read it, they would disagree with me.
Secondly, you’re a lawyer, not a technologist. You are focusing on the minutiae of licensing agreements, while I am focusing on the wide (and real) world that exists beyond them. You are also talking out of both sides of your mouth when you suggest that the CC terms should be micromanaged while also (correctly) pointing out the absurdity of clickwrap agreements and TOSs that no one reads and are contracts of adhesion anyway.
In general I don’t think you understand what I am criticizing. I’m going to try to state this as simply as I can: it hardly matters what any of these licenses say; without tools other than the legal system to enforce them, they are effectively worthless anyway.
And while I agree that “anyone can be a critic,” I have discussed solutions to the problem for many years in this blog, its predecessors, my white papers, and my articles in other publications; you just haven’t read all that and I don’t feel the need (nor have the time) to repeat all that here.
Bill,
With all respect I think you are digging yourself a hole. You say: “I’m going to try to state this as simply as I can: it hardly matters what any of these licenses say; without tools other than the legal system to enforce them, they are effectively worthless anyway” but then you seem to compare CC licenses with some other form of “system” (whether other form of license agreement or whatever).
However, my point remains: The CC license system is nothing but a waiver of the rights otherwise provided for under the Copyright Act. Enforcement is not an issue as that is taken care of, to the extent not specified in the CC license, by the Copyright Act as to those areas of use not expressly waived.
I really don’t see the basis for the complaint here. the CC license is best seen as a waiver – not an affirmative license – and thus needs no enforcement mechanism.
Paul,
I repeat my assertion that you don’t understand what I am arguing. The “system” I am talking about technical measures for enforcing rights, not legal ones.
– bill.
Bill,
Sorry for not understanding but I don’t understand. There are no “technical” means of enforcement in copyright. There are laws and if you infringe there are lawsuits with courts that impose remedies. The remedies have max/min levels. Injunctive relief is a statutory remedy existing outside of the Copyright Act. I repeat that the CC license is a waiver. There is no enforcement mechanism for a waiver as it is a defense raised in an infringement action.
If what you mean is that there is no one out there policing whether the CC license is being properly complied with, then no – but then this would be the case if a more “formal” license were used. And, the concept of waiver is completely at odds with the shotgun approach taken by Hollywood. They would never have a waiver concept and would require everyone to license material for each occasion – an extremely inefficient model particularly when dealing with a content creator who wants to run along the lines of the CC license with the primary motivation of getting known.
Interesting discussion here. We deliberately chose against using Creative Commons when developing Productiontrax.com because of just this. With no enforcement mechanism, it really is just like a garment-care label. With licenses specifically developed for our artists and end-users, we are able to provide better legal protections for all parties involved and actually police usage to a point than we’d be able to with CC.
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