Copyright, copyleft, and culture

Nina Paley has certainly stirred things up with her recent "rantifesto" on free culture and free software. It has spawned numerous responses on various blogs, both from supporters and those who disagree with her contention that the Free Software Foundation (FSF) is being hypocritical in its licensing of its web pages and other non-software works. For some people it is a bit galling to see an organization that is set up to ensure the right to create and distribute derivative works (subject to some conditions, of course) of software, be so steadfast in its refusal to apply those same freedoms to text and other works.

Paley's main example is quite cogent. In her essay, she restates the famous "four freedoms" from the FSF's free software definition and applies them to free culture. In doing so, she has arguably created a derivative work of the FSF's definition, which is not compatible with the "verbatim copying license" that governs text on the GNU web site. Though the FSF web site (unlike the GNU web site) is covered by the Creative Commons Attribution-NoDerivs (CC BY-ND) license, and Paley confuses the two a bit, either of the those two licenses would restrict derivative works. It's a little hard to argue, however, that what Paley has done is not in keeping with the spirit of free software even though it has been applied to text that is specifically licensed to restrict that kind of activity.

In the unlikely event it ever becomes an issue, an argument could certainly be made that Paley exercised her "fair use" rights when creating the four freedoms of free culture. But fair use is a weak and uncertain defense—at best—for anyone wishing to make use of a restrictively-licensed work. Fair use is jurisdiction-dependent and, even in places like the US where it is an established precedent, judges can interpret it in wildly different ways. There is also the small matter of the cost to defend against a claim of copyright violation even if it seems to be fair use. In some ways, it's reminiscent of the uphill battle faced by a software company accused of a patent violation for a patent with "obvious" prior art—it's extremely costly to defend against the suit without any real assurance of getting a sensible ruling. A license that explicitly allows derivative works provides much more certainty.

The argument that Paley is making is not that all works should be licensed freely—though, of course, that is the argument that the FSF makes for software—but that the champion of the copyleft movement should more liberally license its non-software works. The FSF has already run afoul of other free software advocates (e.g. Debian) for documentation licensed under its GNU Free Documentation License—at least for documentation that has "invariant" sections which are required to be carried along with any derivative work. Cynical observers have pointed out that the main reason that the invariant sections exist is so that the GNU Manifesto can be more widely spread. It is difficult to argue that the invariant sections make the documentation more free, however, and they certainly make it difficult to create derivative works in the same spirit as is done with software.

As Paley points out, the creator of a work (be it software, text, photographs, video, fine art, etc.) cannot know the kinds of things that a downstream user might create with a suitably licensed work. This is an argument the free software community should be very familiar with, and would seem to be at the heart of what free software is. All Paley is trying to do is to broaden that freedom to other works in a free culture movement that seeks to remove the restrictions on at least some of the cultural works that are created by our society. Much like the FSF takes projects and other organizations to task over their "anti-freedom" moves with respect to software, Paley is essentially doing the same to the FSF. She is asking the FSF (and the much larger FOSS community) to join forces in helping to foster free culture.

Make no mistake, free culture is clearly under serious attack from the large "content" industries. Fair use is well-nigh impossible to actually exercise with organizations like the RIAA and MPAA along with media giants like Disney trying to maximize copyright in all dimensions. Without a major sea change, nothing that is under copyright today will ever come out from under it and fall into the public domain. Legislators will keep extending copyright terms so that Disney—whose success has largely been based on remixing public domain works—never loses the copyright on its iconic mouse. Without armies of expensive lawyers and lobbyists, the copyright situation is unlikely to change, but individuals certainly can participate in free culture to create a separate commons that is available to all.

Are there differences between software and other works? Of course there are, but they aren't such huge differences that the same principles cannot apply to all. In fact, a perfect example is copyright itself, which applies "equally" to a wide variety of different forms of expression. Another example is Paley's restatement of the four freedoms—it could be adopted by the FSF for software without any real loss. There is no huge chasm between technical and cultural works as some have claimed, and both kinds of works embody the opinion of their creator in one form or another.

Another part of Paley's argument should seem rather familiar to our community as well. She bemoans the dilution—perhaps distortion—of the "free culture" term by including things that are licensed in ways that aren't truly free. We have struggled with the same basic problem, most recently in the "open source" vs. "open core" debates, but, more generally, in trying to agree on what constitutes "free" (or "open") in the context of software.

The proliferation of the non-commercial (NC) versions of CC licenses on supposedly free culture works is one of the problems that Paley highlights. As she rightly points out, these are essentially "field of use" restrictions that wouldn't be accepted for free software or open source licenses. In addition, though Paley doesn't specifically mention it, NC restrictions are a murky quagmire that just make it difficult for potential users to know what's acceptable and what isn't. Can you use an NC-licensed photo on your blog if you also run Google ads to try to offset the hosting costs? Or on a commercial blog service that runs its own ads? Those are questions for lawyers, which is reason enough make folks leery of NC whether they are inclined toward free culture or not—it's simpler to just use regular copyright and decide on a case-by-case basis whether the use is suitably non-commercial.

The no-derivatives (ND) variants of CC licenses have their own set of problems as well. A strict interpretation would not allow a photo to be cropped, resized, or have text placed on it, for example. An ND text couldn't have typos fixed or an introduction added either, which seriously reduces the ability to use it in any reasonable way. NC and/or ND restrictions may be just what the creator intends, but they don't really contribute to free culture in any sensible way.

In the end, there are going to be plenty of non-free works, both software and otherwise. Whoever creates a work gets to choose the license it's available under, and no one has argued otherwise. Paley is just trying to make a fairly reasonable argument that free software and free culture should be allies, and that it's disappointing to see the FSF make fairly arbitrary distinctions between types of expression. The free culture movement is still in its infancy, more or less where free software was 20 years ago or so. If free culture can make similar inroads against the content behemoths that free software has made in the software world, we will all be better off for it. And that, in a nutshell, is what Paley is advocating.