Learning the lesson: open content licensing

As the previous feature on open content noted, the need for an appropriate license was felt from the earliest days. Strangely, it was not Richard Stallman who filled this gap: even though the GNU General Public License dates back to 1984, it was only in 2000 that the corresponding GNU Free Documentation License was created. As a result, the honor for the creation of the first formal non-software open license goes to David Wiley.

In the summer of 1998, Wiley had joined the graduate program in Instructional Psychology and Technology at Brigham Young University, where he began doctoral work on “learning objects” - small-scale, reusable computer-based educational materials designed to be used in a variety of settings. This was just a couple of months after the term “open source” had been devised at the Freeware Summit, and Wiley realized that what was needed was a kind of open source for instructional content.

He contacted people like Richard Stallman and Eric Raymond to ask their advice, and drew up his first license in July 1998. Wiley decided to call his approach “open content” - a term which he seems to have been the first to use consistently. For Stallman, the idea of “open” as opposed to “free” is anathema, and he also refuses to refer to works as “content”, so ultimately he wanted nothing to do with this new “OpenContent License”, even though he and Wiley had previously worked together in an attempt to tweak the GNU GPL for content. Raymond, by contrast, was an important influence on the fledgling open content idea, as the following passage from the newly-created Opencontent.org site indicates:

More input was provided by Tim O'Reilly and Andy Oram, making the license more palatable to publishers so that online versions of printed books and journals could be distributed for free. The result was the Open Publication License (OPL), released in June 1999. Appropriately enough, Raymond's “Cathedral and the Bazaar” was released under the OPL (as was his “Brief History of Hackerdom”). A number of other books, mostly in the field of computing, adopted the license, including GTK+/Gnome Application Development by Havoc Pennington, and Grokking the GIMP, by Carey Bunks. It was also adopted for Bruce Perens' Open Source Series, published by Prentice Hall.

Although the OPL led to a modest increase in open content being made available, the license still had some problems. One was that it came in four versions – OPL, OPL-A, OPL-B and OPL-AB - according to which, if any, of two optional clauses were included. These dealt with the thorny issues of “substantively modified works” and whether the work or derivatives of it could be published in book form for commercial purposes. The combinations obviously made it harder to be sure what exactly an OPL license permitted, and meant that users were forced to refer to the license to find out what their rights were. What was needed was some legal input to produce a series of open content licenses that clearly delineated what could and could not be done with them.

Fortunately, in the second half of the 1990s, a group of lawyers were becoming increasingly interested in the interrelated issues of copyright, intellectual property, digital content and the public domain. Pioneers here include Pamela Samuelson, James Boyle and Yochai Benkler. But the person who has become most closely associated with this whole area is undoubtedly Larry Lessig.

He rose to prominence with his book “Code and other laws of Cyberspace”, which asserted that the Net's software codes necessarily implied legal codes. From this early interest in architectures and their growing power to affect everyday life, Lessig's focus gradually shifted back to the legal domain, where he sought to counter the threats posed by the music and film industries to the new creative possibilities opened up by the Net.

His first attempt at a solution was the creation of Copyright's Commons in 1999, “a coalition devoted to promoting the public availability of literature, art, music, and film.” Its principal instrument was the use of what it called “counter-copyright”, which “strips away the exclusivity that a copyright provides and allows others to use your work as a source or a foundation for their own creative ideas. The counter-copyright initiative is analogous to the idea of open source in the software context.”

When Copyright's Commons became involved in the Eldred vs. Ashcroft lawsuit – which tried to block the extension of US copyright by 20 years - it also pioneered what it called “openlaw”, where legal arguments were posted online for open discussion.

It was Lessig who argued the Eldred vs. Ashcroft case in court – and lost, much to his chagrin. A more positive outcome from this work was the creation of a second, more ambitious, organization called Creative Commons, and the drawing up of a series of formal open content licenses. Like Wiley's Open Publication license, these Creative Commons licenses allow several options. While this lends them great flexibility, it also means that there is now a confusing array of Creative Commons licenses. Indeed, Richard Stallman no longer supports the Creative Commons project because not all of these licenses meet his requirements for freedom.

Despite Stallman's concerns, there is no doubt that the Creative Commons licenses have transformed the open content scene. They offer creators a range of rigorous licenses that have been drawn up by lawyers with a deep understanding of the issues of copyright in the Net age. An important recent court case in the Netherlands has confirmed their legality, at least in that jurisdiction.

Wiley's original licenses were created for educational materials, and among the first applications of the Creative Commons licenses were two major open content projects in the field of what has come to be called open courseware, both funded by the Hewlett Foundation. Just as open source avoids re-inventing the wheel by building on existing code, so open courseware aims to save time, effort and money by making educational material freely available for others to re-use, extend and improve.

The first such project, Connexions, came from Rice University. It was the brainchild of Richard Baraniuk, professor of electrical engineering, who was directly inspired by the example of open source. Connexions uses a content creation platform called Rhaptos, which is released under the GNU GPL. The other major open courseware project came from MIT. One of the people behind the OpenCourseWare idea – which arose out of an earlier failed attempt to make money from selling MIT courses online – was Hal Abelson, who is also one of the founders of Creative Commons. This joint involvement simplified the issue of licensing, something that was a major issue for Rice initially, until it too adopted a Creative Commons license.

MIT does not use an open source platform, but David Wiley has started a project called eduCommons, based on Plone, that offers this facility. Another of his free software projects, called Open Learning Support, and now part of eduCommons, provides Rice's Connexions and MIT's OpenCourseWare with online discussion boards. Baraniuk, for his part, is working on a range of ancillary open source software, including systems to aid translation, and a rating system for courses. It is also worth mentioning the free software course management package Moodle, which is widely used around the world, and Sakai, a similar project, funded by the Hewlett Foundation.

Although both Connexions and OpenCourseWare allow course materials to be modified, they do not make any provision in their platforms for true collaborative development. The final article in this short series will explore how this issue has been addressed by open content projects.

Glyn Moody writes about open source and open content at opendotdotdot.