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
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
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
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
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
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.
to post comments)