Coffs Free and Open Technology Network

For some time now, I've found the Creative Commons philosophy morally troubling in a way that the free software philosophy isn't, without being able to satisfactorily articulate precisely why. (I want to stress that I am criticising the project, not the people involved in it or people who use CC licenses, many of whom recognise that it is an imperfect but useful tool for achieving goals which I would consider quite compatible with my own.) Last week Science Commons, a subproject of the Creative Commons, released a short video summarising their mission. A couple of quotes from this video struck me as problematic:

"We want to get [scientific] data up in a commons on the Web so other users can use it for new uses, new experiments, new insights, and still give people who want some control an ability to keep some of that control." (My emphasis.)

This expresses a familiar theme in the Creative Commons philosophy; that it is not necessary to establish what is morally right. Instead we need only seek a balance between private incentives and the public domain, and between the rights of consumers of culture and business interests. You do not therefore need to do any thinking about the best way to produce and re-produce (what in the 20th century was called "consuming") culture and knowledge, merely to give creators a range of options and let the "free" market decide. It's what you might call ethics by the Fox News "fair and balanced" method. Take a sample of possible opinions (it turns out there's rarely more than two), and whatever opinion lies at the mean point between these must be good and true, if not necessarily beautiful.

"We're not trying to interfere with rightful ownership of compounds, drugs, devices [...]"

My first thought in response to this was "Why not? Which project does? I want to support them." It can be argued that there is no such thing as "rightful" prevention of the manufacture of life-saving drugs and machines in order to maximise profit for a monopoly producer. You could even argue that scientific research financed and carried out under the premise that the practical application of any findings would be regulated in this way is ethically tainted.

These sorts of objections have always appeared to me to be somewhere on the right track, but still lacking, still requiring an appeal to moral intuitions in order to be really persuasive. Why shouldn't identifying "stakeholders" and averaging out their desires produce an outcome that's morally right? How can you demonstrate that it at least probably won't? I recently listened to a philosophy podcast (MP3 only, unfortunately) which suggested a useful way of thinking about these problems.

In his book, A Theory of Justice, John Rawls criticised existing "social contract" philosophy on the grounds that those involved in developing any such contract will skew the terms of the contract to favour those positions in society which they themselves currently occupy. You might call this the "government of the people by rich white guys for rich white guys" objection.

Rawls suggested dealing with this problem through a thought experiment whereby the principles of justice within a society would be decided as though:

"... no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. [...] The principles of justice are chosen behind a veil of ignorance."

In drafting the social contract of the free software movement, Richard Stallman and the Free Software Foundation effectively did just this. The principles of the free software movement, as expressed in the Free Software Definition and the GNU General Public License, were not derived from anyone's desire to better their personal lot, or the lot of any particular class in society. Stallman faced what he called "a stark moral choice", and expected that in devoting himself to free software, his career would be a lot less rewarding than it otherwise would be, both financially and in non-monetary ways (there's precious little glory or intellectual satisfaction to be had from rewriting basic software like cat and ls). However the primary issue for Stallman, and for those who subsequently joined the free software community, was the need to live and work in a community which adhered to basic principles which were not morally objectionable.

Martha Nussbaum recently took Rawls' thinking a step further via what she calls the "capabilities approach" to social justice. Nussbaum argues that there are a set of ten "capabilities" that all human beings should be able to enjoy and that these should be built into any notional social contract. The parallel between an ethics which requires a minimum set of ten capabilities for human beings and an ethics (albeit more modest in scope) based on a minimum set of four freedoms for computer users is striking.

Furthermore, Nussbaum's ten capabilities are due to all human beings, regardless of their participation, or ability to participate (which might be absent in the case of those with intellectual disability, among other situations), in the framing or execution of any social contract. Mako Hill has observed that although historically the free software movement has been largely composed of software developers and technologists, it is these individuals who bear the greatest share of the burden to abide by the GPL "copyleft" contract, and it is the much larger class of software users lacking programming skill who (being more numerous) derive the lion's share of the beneficial consequences of the four freedoms.

The fundamental problem with Creative Commons is not merely that their licenses are bad - a couple of them are perfectly fine. Nor is it merely that they refuse to "draw a line in the sand" and say which conditions must be met before a license for cultural works can be considered free. It is that they refuse to challenge themselves and copyright holders to even consider the kind of society they would want people to live in - regardless of whether and to what degree they are a creator, a re-creator, a creator-to-be, a publisher, a critic, an afficionado, a fan, or a philistine - and what minimal conditions are required to bring that society about. In fact they do the exact opposite. They encourage copyright holders to choose from a range of licenses whichever one they feel serves them best regardless of the interests of the rest of society, and if they feel vanilla copyright brings them more benefit, well, that's okay too. They tear away Rawls' "veil of ignorance", and attempt to build a commons without first building a community, sharing a fundamental set of principles, to tend that commons.

"Like the Free Software Movement, we believed [CC licenses] would help open a space for creativity freed of much of the burden of copyright law. But unlike the Free Software Movement, our aim was not to eliminate 'proprietary culture' as at least some in the Free Software Movement would like to eliminate proprietary software. Instead, we believed that by building a buttress of free culture (meaning culture that can be used freely at least for some important purposes), we could resist the trends that push the other way. Most importantly, the trend fueled by the race to 'digital rights management' (DRM) technologies" - Lawrence Lessig

It is no accident that if you ask people to name an organisation that campaigns against DRM, the few who have an answer will nominate a Free Software Foundation initiative (Defective By Design), not a Creative Commons one. Creative Commons cannot say that DRM is morally wrong and incompatible with a just society, nor can they say that the question of whether it is or isn't morally wrong is even worth considering. They say only that DRM upsets the balance between the competing interests of those whom see as their stakeholders. And indeed, as the Creative Commons project sees it, some DRM is here to stay, and that's fine as long as there is some CC-licensed work to even out the scales:

"So how would Creative Commons licenses help with this problem? Our view is that they would help restore some balance between both extremes. We believed that if we provided a simple way for creators to say what freedoms they intend their content to carry, that would, for many creators, be enough. Not enough for Hollywood releasing a new film, perhaps. But enough for the widest range of creators who are making accessible their creative work through the Net." Lawrence Lessig

This is not at all like the free software movement, and rather more like the open source movement, a splinter group of morally-disinterested free software developers, most of whom believe that free software is preferable to proprietary software only when it is technically superior for your immediate purposes. It's as though to avoid having to make any difficult stark moral choices, the Creative Commons project from the outset chose to distance itself from and to undermine what would otherwise have been it's mission. Creative Commons is it's own subversive splinter group.

Well, you might say, does any of this matter if this inclusive and pragmatic strategy has resulted in more free culture (according to the definitions of free culture that are now evolving, as they must, outside of the Creative Commons project) than would have existed if they'd taken some hardline moral stance? Of course we can't say what might have happened if the Creative Commons project had been interested in the ethics of culture. However we can make some crude measurements of where the equilibrium point currently lies along their spectrum of "some rights reserved".

At the time of writing, music hosting site / netlabel Jamendo is hosting 14075 Creative Commons licensed "albums" (on Jamendo an album can consist of a single track). Only 3146 (22 percent) of these permit commercial use, and only 2844 (20 percent) permit both commercial use and derivative works. This is an arbitrary and unscientific sample, but I think most free culture advocates would consider it a rather optimistic estimate of the ratio of free to non-free Creative Commons licensed works currently in circulation.

Given that the project is founded upon amoral laissez-faire utilitarianism, rather than an objective consideration of social justice, is it any surprise that Creative Commons has been at least four times as successful in promoting shareware culture as in promoting free culture?