ASCII by Jason Scott

Jason Scott's Weblog

Creative Common Sense —

If you’re stumbling onto this weblog entry without any other context, be aware of two things: first, I wrote a very large love letter to Creative Commons a ways ago, and I took a 4-year project/documentary and released it under one of the most liberal Creative Commons licenses available: Attribution-Sharealike 2.0. So I put my money where my mouth is.

This is speculative, anecdotal, and unsolicited. So you know it’ll be good.

I’m a big fan of Creative Commons the variation on US Copyright Law that allows for a greater range of freedoms to created works. If you’ve not heard of it before, the website they have gives a pretty good overview of the thinking.

Creative Commons is an interesting side hack. Instead of just trying to fight the various embarrassingly overarching copyright laws and have creators feel they only have the choice of releasing things to the public domain or locking everything down forever, a group of lawyers and activists created alternate copyrights. These sets of copyrights range from essentially releasing to the public domain all the way up to pretty restrictive lock-downs, although lacking some of the more egregious aspects of “standard” US copyright law.

It’s essentially a “fork” off of the copyright tree, just like people do with software, where someone comes along and goes “I’m going to concentrate on security” or “I really hate the asshole who runs that project” and off they go. Occasionally they focus on security over usability and sometimes they’re an even bigger asshole than Original Asshole, but still, this is in many ways a sensical response to madness or poor choices: make new madness and new poor choices. The question, really, is if the new madness and new poor choices attract enough of audience to be a going concern. Creative Commons has, in fact, done that.

Not only has it done that, it’s really done that. It’s almost a matter of incredulity that Creative Commons is only 6 years old. There are, at this point, literally millions of works available under Creative Commons. Photos, songs, movies, writings, weblog entries… if you know where to look, you could spend the rest of your life traipsing through media under Creative Commons License and never run out.

But as someone who launched into a major project that was ultimately under Creative Commons, I spent a lot of time actually going through the process of using it, of reading it, of dealing with people I’d never met and will never meet and using their stuff, and I had some conclusions about it.

But first, a little bit on contracts.

Buying a house is a harrowing experience, especially if you’re in an inflated real estate market. You’re dropping hundreds of thousands of dollars into something, and it’s probably the biggest purchase you’ll ever be making. It’s also one where a lot of hands get into the pie: agents, lawyers, banks, and so on. For my own case, there was my lawyer, the sellers’ lawyer, the real estate broker, the real estate broker’s boss, and a representative of the bank all in the same little room a half-mile from my future home. There were somewhere between six million and fourteen million (I’ve forgotten exactly how many) places I had to initial, sign, place my ass-print, etc. If you’ve ever rented a car, they make you initial a bunch of stuff as well as signing it. Well, it’s a lot worse with buying a house.

So I’m sitting there reading the contracts one more time, and I saw this one clause buried in the middle of the mortgage contract, which read, basically:

You hereby grant The Bank limited power of attorney to effect minor changes in the contract for the purposes of correction, typographical errors, etc.

It took about a paragraph to do this, but that’s basically what it said.

“Hello, what the good goddamn is this?” I politely said. “I’m not going to sign that.”

This broke everything. The seller’s lawyer was nonplussed, my lawyer was pooh-poohing it, the bank guy was shifting in his seat. Everyone indicated, in their own way, that this was no big deal, just sign it. Well guess what. No.

The ceremony and wonder of a bunch of people in a room and a big stack of papers I was signing was not going to sway me to spontaneously look at something that I considered horseshit and sign my name to, just because there was some sort of reward, i.e. a house, at the end of it. I was renting an apartment and if need be, I was going to buy another house, elsewhere, where I wasn’t granting limited power of attorney. The bank guy had to call back to the home office to get permission to strike this, while my own lawyer person was explaining this was no major issue. “If they have to make a minor change, they can call my cell phone,” I said. “And THAT’s no big deal.”

And you know what? They struck it. If they decide they need to make a “minor change” (or, more accurately, the bank of the sub-bank of the hedge fund of the clearinghouse that no doubt bought my mortgage needed to make a “minor change”) then I’d get a little ringy-dingy.

It’s been 4 years. No ringy-dingy.

There’s a moral or two in there. I’m sure for some people it’s Jason Scott is an obtuse dickweed and you should never do business with him, but I hope that for the majority of the folks reading it’s Jason Scott honors contracts and he can only do that if he understands the contracts he’s signing.

And my thesis is that an awful lot of people are signing Creative Commons deeds without understanding a whole lot about them.

So, back to Creative Commons.

Creative Commons, like I said, lubricates the process of not wanting to put draconian copyright law on your works but also not wanting to release things into the public domain. It does this because a lot of law students and lawyers worked together and crafted an architecture out of contract law to provide you a ready-made, EZ-bake deed. They’ve been very meticulous about it, too. Not only do you get the actual contracts out there, but you also get tools to publish your works and the equivalent of sitting down with a team of lawyers to give you the chance to indicate what you want. Of course, the questions are rather simplistic, like “Allow modifications of your work?”, but all of those have little clicky popups that will elaborate, if you so choose.

And make no mistake, Creative Commons tries very, very, very hard to make sure everyone understands what they’re getting into. The “Think About It” page is nothing less than a waiting room where you’re meant to mull over things carefully, understand the ramifications of this stuff, realize what you’re ultimately doing. Creative Commons is not evil.

I intended to sprinkle my documentary series with Creative Commons-licensed works. After the documentary was finished, I intended to do a thousands-of-units production run of it. And when you’re about to dump $30,000 into duplicating a bunch of plastic and cardboard that would be relatively expensive to re-duplicate, you want to make sure that every last thing on there, that you can possibly double-check, has been double-checked. That goes for quality of image, that goes for sound clarity, and that goes for your rights to duplicate and sell those things. Granted, it is basically impossible to create any work of any length and not technically infringe on something, somewhere, somehow. But you can certainly do your best to not close your eyes and backflip into a pool, hoping some other guy did that whole “filling with water” part.

So when I found music to use from something called the OPSound Pool, a website whose rule is that you have to license your music under the Attribution-Sharealike License (one of the most liberal), I went and researched every band to verify they were the ones who put the music up. I would also, in most cases, contact the artists if I could find them.

What I encountered a couple of times is that artists would be on Opsound or other locations, and while they were “licensed Creative Commons Attribution-Sharelike”, every vibe I got from their sites was that they were doing no such thing, in their minds.

I’d see things like “I’m licensed CC-BY-SA” and within the same paragraph, I’d see “You may not sell copies of this work.” Well, that’s wrong. You can sell copies of the work if you want to. You can remix it into a rap song about abusing women. You can turn it into a ringtone and sell it at a buck apiece. You can take a movie under CC-BY-SA and then play it forever in a movie house and charge $10 a head to see it and pocket all the cash!

The BBS Documentary was licensed CC-BY-SA 2.0. Here’s some of the things that people have done that I know of, all of them implicitly allowed by that license:

  • Translated the whole thing into Chinese and subtitled it.
  • Uploaded it to Google Video.
  • Uploaded it to YouTube, in pieces.
  • Shown it to students of a college for a networking class.
  • Shown it to high school students for the hell of it.
  • Given it to a library.
  • Made it part of the selection at a video store.
  • Bittorrented individual episodes, and complete DVD-ROM .ISOs.
  • Uploaded the whole 18gb of data to Usenet.
  • Burned dozens of copies for your friends.
  • Kept a copy of the whole thing on your central server so anyone at the house could watch it.
  • Taken an episode that has you in it and left it on your website so people could get your story.

In most of these cases, I don’t see a dime even though more and more people are seeing it than bought it. In some cases, hundreds of people are; thepiratebay showed thousands of downloads of the episodes when it was still a hot ware. Do I feel cheated, used, abused?


One case that sticks out in my mind was this guy who had his stuff up on Opsound, totally claiming the license of CC-BY-SA, but also including “you may not make any changes to the work” in the description of his band. His music was pretty good, and I was considering using it, but that dissonant line got my attention. So I wrote him, and said “So are you licensing it Creative Commons, or is it copyrighted? Because you can’t have both those lines in there.” His response, somewhat crankily, was “No, it’s definitely CC licensed, but you can’t change it.” My ill-advised response was “Well, yes, yes I absolutely can.” Things went downhill from there.

There’s an interesting tangent to the story; of course, sensing danger, I didn’t use any of his music. I figured “Obviously, this person signed up for Opsound to get more distribution, but he didn’t want or understand what all those crazy rules meant.” I went on with my production, about 9 months passed, and I suddenly had 5,000 copies of the BBS Documentary in my basement. Wonderful! I was then giving away dozens of copies: people who’d given me cash, people who pre-paid, musicians and others who had provided me stuff either directly or through a CC license.

Somewhere in there, I had the guy’s name in my “musicians” list, so I sent him a free copy.

At some point later, the guy mails me, explaining to me how he’d gone through the whole five and a half hours of the documentary, and he hadn’t heard any of his music; where was it? So I went through the e-mail trails, and discovered it was that guy and mailed him and went “Oops, sorry, I didn’t use you and I sent it by mistake. Enjoy the free copy.”

Well, from the torrent of profanity, hatred and criticism that I got back, I can now report to you that the BBS Documentary series is not very enjoyable if you’re going to be doing nothing but listening intently for your own music to appear and it never does. If you’re in that group, please, reconsider buying or acquiring a copy.

To make the music work in my film, it was often necessary to do insane surgery to the original files. In one case (the Fidonet episode) there are cases where I mixed together five separate songs, usually solo guitar pieces, cutting out all the singing (which tended to be terrible and distracting) and just using the strumming (which was generally good background). If you were to see the cuts in my video editor, it’d look like someone’s evil science project; or a railroad track. Cuts were as short as one second and as long as thirty seconds. Except for the fact I listed them in the credits, there’d be no way for most people to pick out any song out of that goulash. But damn if it didn’t work!

As an illustration, here’s an MP3 of the guitar trickery from the middle of the Fidonet episode. (2mb MP3, 04:23) If you concentrate on the guitar playing, you’ll notice the repeating themes, the copies of smaller clips, and the way the music changes. Once I draw your attention to it, it’s hard to miss. I can do this, because Creative Commons attribution-sharealike lets me.

I think that as time goes on, and the ease by which Creative Commons is integrated into things like Flickr and weblogging software, a lot of people are being given the push to license their works in ways they haven’t thought through, just like a ton of people click through End Use License Agreements without thinking them through.

I get calls from people to seek permission to “do things” to the BBS Documentary. I’ve had schools call me for permission to show it to classes. I get calls from people to use clips from it for presentations. I get e-mails where startups who want to stream video offer to buy the “rights” to my films. But the answer is always the same: I already gave permission. Do anything you want. Forever. For free. But what you do with it has to also have the same permissions to let anyone do anything they want, forever, for free.

I watched a young lady who put up modelling photos of herself demand they be taken down from the Internet and never distributed again. Apparently she didn’t like the attention her photos had earned. Well, guess what. She licensed them Creative Commons, and she was over 18 at the time. Sorry, nice lady. Your image is everywhere. Forever. For free.

As people see their stuff show up in commercial works, remixed like crazy, and their names in tiny print or off to the side, I wonder how many are going to stand there and complain that they didn’t in fact license their stuff to be that way. That they licensed it creative commons, but not THAT common.

And the real fun hasn’t really started.

As time goes on, the chances of there being a “money” situation increase. And there’s going to be a money situation at some point. Something where $10,000 is at stake, the difference between being paid a royalty for something and not. The difference between a work being a part of a major motion picture, the artist compensated, and not. And through all this Creative Commons hasn’t been tested to a large degree in court.

Make no mistake: my next documentaries will both be Creative Commons licensed. I read the contracts and I like what I saw. But I actually read the contracts.

I wonder, from my own little observations, how many companions I have in that.

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  1. AngiePen says:

    My guess would be not very many. I think you’re right, that people are using this without understanding, without even reading, or as you suspect with Music Guy up there, they just joined a site for the distro without having a clue what it meant. And yes, I agree that there’s going to be a fairly largish blow-up eventually, because there always is when money’s involved and people aren’t paying attention until it’s too late. I just hope that the blow-up doesn’t derail the whole CC thing completely. [crossed fingers]


  2. Fred Blasdel says:

    I think in cases of author incompetence in licensing (which is becoming ever so common), the licenses are going to be the first thing to get fucked, and are basically a facade for showing people how ‘cool’ you are.

    Look at how blatantly Wikipedia violates the GFDL by perma-deleting stuff.

    Yet at the same time they histrionically decided that MP3 was ‘encumbered’, transcoded everything to low bitrate OGG, banned MP3 encoded files from Wikimedia, and shouted down anyone that complained. Anybody that stumbles into it gets an incoherent screed and is pointed to the terrible Java-applet based player. The whole exercise is ridiculous, there is really nothing stopping them from using MP3 too.

    Most of your average internet clowns understand this mess, and a number of them know just enough misinformation to be dangerous.

  3. Stephen Gilbert says:

    What part of the GFDL, specifically, is Wikipedia violating when doing a permanent deletion of material?

  4. Fred Blasdel says:

    Basically, the idea is that if you remove or fail to display previous revisions of Wikipedia articles, you violate the GFDL. Section 4 states clearly that all the details of each revision leading up to the current one must be maintained in ‘the document’.

    But wait! Wikipedia routinely deletes and disappears old revisions, either because of legal threats, perceived inaccuracies, or requests on the part of living people. The process is arbitrary, weird, opaque and definitely a violation of GFDL. “For the good of Wikipedia”

    It’s like they never bothered to read the parts that actually apply to them.

  5. Chris Barts says:

    The Creative Commons licensing folk should have made very clear to you that licensing your works does not “fork” copyright law or create “alternate copyrights” or alter American copyright law in any way. They should have made VERY clear to you that licenses are not contracts and that trying to use contract theories or mindsets when parsing licenses (or vice versa) is a monumentally bad idea. If the information they’re providing you is that bad, they ought to be slammed with as much bad press as we can muster before their misinformation hurts someone.

  6. Jason Scott says:

    I actually wasted a half-hour of my life I’m not getting back on your comment, Chris, so congratulations on that aspect of things, if nothing else.

    I don’t know where you got the implication I was indicating Creative Commons directly “forks” copyright law in a legislative manner; I mean that it takes the rules laid down by copyright and then indicates the CC licenser is not going to enforce those aspects of copyright, according to a set of rules laid out in the Creative Commons Deed. Sorry if that wasn’t clear.

    As for the rest of it, licenses are contracts. They are not written signatory contracts, but of course they’re contracts: an agreement of rules to be followed should the user decide to integrate/use the content being licensed under CC. By using the content, they agree to the terms. But not using it, they do not agree to the terms. That’s a contract.