Creative Commons and Human Nature

7 min read

Over on his blog, Dr. Charles Severance has outlined some issues he faces with his use of Creative Commons licensing. I suspect that he is not alone in grappling with these issues. While I have responded in the comment thread on his blog, I also wanted to put these thoughts down here so I don't lose them over time.

Dr. Severance (and additional commenters) outline some scenarios where they have experience issues.

The first two scenarios pull from this comment:

The first scenario is I write a book, make it CC-BY, provide a free electronic copy, and publish at a low price on Lulu so those who want a printed copy can get it. An unscrupulous person grabs the electronic copy and with no changes puts it up on Amazon Createspace and starts selling it. Createspace *would* take the book down if it was ARR but not if it is CC-BY.

After reading through the CreateSpace content guidelines, this actually appears to be a non-issue. CreateSpace is very clear that openly licensed material that is available on the web can only be sold on CreateSpace by the owner of the content. The quotation below is pulled from the "Public Domain and Other Non-Exclusive Content" section.

Some types of content, such as public domain content, may be free to use by anyone, or may be licensed for use by more than one party. We will not accept content that is freely available on the web unless you are the copyright owner of that content. For example, if you received your content from a source that allows you and others to re-distribute it, and the content is freely available on the web, we will not accept it for sale through CreateSpace. We do accept public domain content, however we may request that you provide proof that your submitted material is actually in the public domain and may choose to not sell a public domain title if its content is undifferentiated or barely differentiated from one or more books already available through our service or available through other retail sites. We do not currently accept public domain material for Amazon Video on Demand.

Lulu doesn't appear to have comparable language around openly licensed content, so the NC license would be required to prevent people from reselling openly licensed materials on Lulu.

The next scenario concerns people taking video content and using it in a YouTube channel:

Coursera allows download of high quality videos for those who have bad connections – sometimes a school will download one copy and pass them to many students – or perhaps a company will grab a copy of all the videos and put it up on their intranet behind a firewall. This is great. I license the lecture materials and videos as CC-BY to allow flexible responsible use of all or parts of the lecture materials and videos and because I firmly believe in open educational resources and permission-free remix/reuse etc. But one (out of over 100,000) students decides that they will download all my materials and construct their own YouTube channel of my materials. I contact youTube and ask for a take down request and of course since they are CC-BY – even as the owner of the materials I have no standing in my take down request.

This could be addressed in a couple ways. First, using the Non-Commercial license would probably require Coursera to ask permission before reusing the material, as Coursera is a for-profit company, and delivering courses is their business. At the least, this would enable a conversation that would allow the creator of the material to have some say in the specifics of how the content was reused in that context. It's worth noting that in this instance, the effect of the NC license is comparable to reserving all rights - except, of course, that the NC license would still permit legitimate reuse.

And, in the case of a student who creates a YouTube channel of these videos, the NC license would provide the creator with additional recourse. And, in the case of videos, embedding links/information about the creation of the video in the video would mitigate some of the effects of a third party creating a YouTube channel, as every video would point back to the original source of the content.

Is this a widespread practice? And if it is, and the video contained links back to the original creator, what harm, if any, is done by this? If the point is to help as many people as possible learn as much as possible, even the spammers are helping (despite the fact that spammers are the lowest form of life, below even car salespeople and SEO marketers).

In another comment, Mike Caulfield describes his concerns with a question bank:

I hit different problems with CC-BY on a course I was building — the question/answer bank was importable from the Common Cartridge export, and it occurred to me that it licensing it CC-BY essentially allows it to be shared with any student taking the tests. I wanted to assert that it was free for teachers while maintaining takedown rights on things like Course Hero. You can’t really get to that level of subtlety with CC licenses.

First, the licensing on the questions has never stopped people from sharing them or posting them. As Mike notes, making them freely available as CC-BY would give them the right, but it's worth highlighting that questions have been shared even when people didn't have the right to share them.

But let's dig into this: what if the questions were shared out and known in advance? Students would still need to read through and learn the answers. If the questions are good questions, this provides another means of mastering the essential information in the course. If the questions are mediocre, that's an instructional design issue, and the quality of the assessment needs to be improved.

In any case, the questions could still be licensed as CC-BY, but only made available on request.

In looking at the issues described in this post, they feel more like issues with human behavior (or misbehavior) as opposed to licensing. As many people have noted in the comment thread, there is a subset of people who steal content all the time, and the license is not relevant to these folks. So, reserving all rights won't do anything to stop the thieving class, period.

Within the Creative Commons world, using the NC license is probably the closest thing (arguably - the No Derivatives license is also very restrictive) to reserving all rights. It's worth noting that using a restrictive Creative Commons license still provides more flexibility that reserving all rights, as the more restrictive licenses all identify specific ways that the content can be reused without needing to ask permission. Looked at in this context, a more restrictive Creative Commons license is like a flag that indicates that the author is open to allowing reuse, but that they want to retain some control over the specifics of that reuse.

Still, with all this said, it's worth noting that you can't license people into good behavior. What a lot of people want is a Creative Commons license that says "People who use this well can use it however they want; people who don't, can't."

Unfortunately, it doesn't work that way.