Yesterday we asked the U.S. Court of Appeals for the Second Circuit for permission to file an amicus brief in litigation involving our BY-NC-SA 4.0 license. (Full brief [pdf]; motion [pdf]). We did so for two reasons: first, to share our understanding of how all of our licenses operate (not just the NC licenses) where an entity, rather than an individual, is using the work; and second, to explain how the NC licenses work when an entity properly using NC-licensed content hires a commercial copy shop to help it exercise its rights.
Rarely do legal disputes arise over the interpretation of our licenses. And rarely has CC directly involved itself in those disputes through an amicus to lend our perspective. But sometimes it is important, especially where the fundamentals of our licenses are in question, or when a decision may seriously impact the open license ecosystem, such those at stake in Grokster, Jacobsen, and Golan.
In this litigation, Great Minds sued FedEx Office for making copies, at the request of a school district, of educational materials it produced with public funding and licensed under the BY-NC-SA 4.0 license. (The original complaint and many of the related filings, including CC’s request for permission to file an amicus in the district court, are here). Importantly, Great Minds doesn’t argue that the school district’s use of the materials violates the NC restriction, but that FedEx Office does when it makes copies solely at the direction of the school district. We’ve previously summarized the dispute and shared before why we’re fighting to protect non commercial uses despite criticism of our NC licenses by some communities.
The interpretation we urge in our amicus brief – and the only interpretation that is borne out by common sense, the unambiguous language of the license, and established law – is that:
[a] school district may permissibly use FedEx Office as a means by which the school district exercises its own licensed rights. The license does not restrict the school district to using only employees to exercise those rights; it allows the school district to engage anyone— employees and non-employee contractors alike—to do so.
This is not to say that commercial copy shops can copy NC content without restrictions, but instead to clarify that when acting solely at the direction and request of an organization that is itself only using the work for non commercial purposes, as Great Minds has conceded the school district is, a third party like FedEx Office is sheltered by the non commercial user’s license.
To be sure, CC discourages use of the NC licenses in many situations, including where educational resources are funded using taxpayer dollars. But that community criticism by some and our discouragement as a policy matter in some situations aside, many creators of content appreciate and rely on our NC licenses to preserve their ability to commercially exploit their creations while still sharing those works with the worldwide public for other purposes. Moreover, in this litigation there is more at stake than just the proper interpretation of NC – the core question is about the proper functioning of all of our licenses: whether and when an entity may use non employees to exercise the rights our licenses grant.
As steward, we feel it important not only to support creators and licensees who are using CC-licensed works, but to also educate and ensure judges and courts understand how they operate. Otherwise, the overarching goal of facilitating sharing, and the very utility of our licenses – designed to be useful tools – are undermined. Great Minds has produced open educational resources (OER) using public funds that school districts in New York and elsewhere are eager to reproduce and use as a central part of their curriculum. If the interpretation of our licenses and NC that is offered by Great Minds is accepted, the plain text of our NC licenses will be contradicted, the utility of our NC licenses for reusers will be impaired, and real-life consequences will result that are counter-intuitive at best (we describe some of those cases in our brief).
As part of our effort to build a more vibrant and usable commons, CC is trying to hone in on what makes sharing truly meaningful. We believe that very often, it is the connection you make with other humans that is the most valuable part of the sharing experience. Whether it is an interaction you have with someone who reads your blog, or a creative collaboration you have with another musician, applying a CC license to your creative work and sharing it with the world becomes even more meaningful if it leads to connections with other people.
We want to find ways to foster and encourage those connections. To do this, we are broadening our focus to look more holistically at sharing and collaboration online. We are calling this our prosocial work — investigating the values and behaviors that lead to successful collaboration. While this effort will lead us into topics that extend beyond CC licensing, our goal is to gather fodder for our work to infuse those values and behaviors more deeply into the experience of sharing with CC.
Thanks to tvol who took this photo (CC BY) and extensive notes that have allowed us to provide the summary on Medium!
We recently hosted the kickoff event for this work. At Patreon’s office space in San Francisco, we brought together people from a wide variety of online sharing platforms for a panel discussion with representatives from Medium, Patreon, Wikimedia, and Reddit. We discussed questions such as What can platforms do to promote more human interactions online? Are there times that introducing some of the inefficiencies of real-life interaction into online platforms can lead to more prosocial behavior? What role do platforms play in developing and memorializing the sharing and collaboration norms that develop within their communities?
A full recap of the wide-reaching discussion that followed is available on Medium. There were many interesting insights that emerged, but one of the most valuable aspects of the conversation was the fact that it was happening at all. As we heard from participants after the event, rarely do platforms like Reddit and Wikimedia get to appear on panels together and discuss the struggles and successes they each face within their online communities. As an organization founded to cultivate sharing across the web, CC is well-suited to foster these types of silo-busting conversations. As part of this work, we will be hosting more of these convenings over the coming year.
We’d love to hear from you about what and where our next conversation should be, and if you have suggestions for speakers with experience in behavioral research, technical or social design, or content sharing platforms that may be able to speak to these issues. We will host another conversation in San Francisco in October, with Los Angeles and New York City also possibilities for other months.
Email your ideas to jane or sarah [at] creativecommons [dot] org. We look forward to hearing from you and hosting you at our next conversation!
This is a guest post from Peter Jonas of Openscore, a recently Kickstarted initiative to open up sheet music under CC0. Learn more about CC0 and its powerful role for cultural heritage organizations and be sure to sign up for our email list for more great content.
OpenScore is a new crowdsourcing initiative that aims to digitize classical sheet music by composers whose works are in the public domain, like Mozart and Beethoven. Massive crowdsourced projects such as Wikipedia, Project Gutenberg and OpenStreetMap have done wonders for the democratisation of knowledge, putting information and power in the hands of ordinary people.
OpenScore hopes to transform history’s most influential pieces from paper music into interactive digital scores, which you can listen to, edit, and share this will hopefully benefit orchestras, choirs, ensembles, and individuals looking for materials from which to practice music. All OpenScore sheet music editions are freely distributed under Creative Commons Zero (CC0). In doing this, we want to maximize the benefit to music education and research, and inspire composers and arrangers to produce new content.
OpenScore is the result of a partnership between two of the largest online sheet music communities: MuseScore and IMSLP. Since 2006 the IMSLP community has been searching for out-of-copyright musical editions, scanning and uploading them to create one of the world’s largest online archives of public domain sheet music in PDF format. MuseScore has a dedicated community of millions of people around the world who use MuseScore’s website and open source notation software to compose, arrange, practise and share digital sheet music. OpenScore will draw on these communities to transcribe the IMSLP editions, which are currently just pictures of pages, into interactive digital scores by typing them up, one note at a time, into MuseScore’s sheet music editor.
OpenScore’s digital scores are available in the popular MusicXML format, which can be opened in most notation programs, and is readily converted to guitar tablature or other forms of notation. The scores can also be parsed by software tools for research and analysis purposes, and even turned into artistic visualisations, such as this visualization of Vivaldi’s Four Seasons by Nicholas Rougeux. Nicholas is a digital artist and web designer based in Chicago, and he has agreed to create a unique cover image for each OpenScore Edition based on the music in the score.
We’ve had a number of people reach out to us who are interested in transcribing, and thanks to them we’ve been able to publish the very first OpenScore Editions. If you are interested in joining our campaign as a transcriber, please see this post on the MuseScore forums.
We featured Robin McKenna’s new film GIFT in a special session at the CC Global Summit. Inspired by The Gift, Lewis Hyde’s seminal work on creativity, culture, and art, McKenna’s film tells moving stories of remarkable generosity and sharing, from Alaska to Black Rock City to Seoul to New York City. Her work has taken her around the world and into the lives and homes of artists and communities motivated by an intrinsic giving force outside of the market economy, in service of the spirit that moves all artists. In a 2014 interview with Shareable, McKenna says, “I started thinking more about interior gifts, the openness involved in the creative process, the role of chance and accident, the gifts that come to us when we’re ready to receive them. This kind of circulation of gifts has been central to my whole life, the choices I’ve made, and my creative path.”
A call to action to bolster the transformative power of gifting globally, McKenna’s film is a much needed meditation on the role of sharing in the world today.
In what ways are you inspired by Lewis Hyde’s work? In what ways do you diverge? How do you balance the act of documentary filmmaking with the book’s creative ethnography, and how do you make Hyde’s words come to life for a documentary audience?
I think the book articulated something for me that I had kind of intuited for many years, but hadn’t totally understood until I read it. When I was around 18 I had experiences of, for example, reading William Blake for the first time, or the beat poets, and feeling my heart stop: having the realization “this could change your life.”
Art could transform you, spark something in you that changes you. Then that gift takes shape in you, in its own way, and maybe something else is created, out of that.
I guess the book became that for me – a gift that transformed, shape-changed, and took 5 years to become this film.
I told Lewis I wanted to “remix his book for the 21st century.” What’s interesting is the book was written before the Internet existed, the free software movement, the “sharing economy”, any of this. The book came out in 1983, and it talks about the rise of the market economy and its dominance over the culture we live in. In some ways, considering how much more extreme those influences have now become (now, in the age of Trump, in almost a surreal way, right?) some passages in the book sound almost quaint or naïve. Now we almost take for granted the kind of “market triumphalism” that dominates every aspect of our lives.
Balancing the book and film was challenging! We experience a film so differently than a book – as a medium, cinema tends to be more emotional and experiential. Hyde uses fairytales and folktales as parables to illustrate his ideas. What I decided to do was follow four character-driven stories in different places in the world – and to try to weave the ideas through their stories. This way, the film takes us inside an experience, and a character; my hope is that we have a chance to feel the ideas, as opposed to just having them explained to us in words.
In the book, Hyde writes, “The more we allow such commodity art to define and control our gifts, the less gifted we will become, as individuals and as a society. ” How do you interpret this quote? How do you work within the commodity economy as an independent artist? How do you work outside of it?
I spent some years working more in a TV context, as “director-for-hire”, and could feel a kind of conflict in myself: I knew there was something I needed to do that was more personal, more meaningful to me, that I wasn’t fully doing. And when I read The Gift, it spoke to that – how something is sparked in us, by our experience of art – and needs to come through us, somehow.
When I started making this film in 2013 I stopped working “for hire” almost completely, to just develop this and other personal projects. The Gift film is mostly financed, but not completely: so as producer/director, I’ve had to invest a lot of what I should have been paid to make it, to allow it to get made. So, I guess I’ve been facing the classic dilemma: devoting myself to something I love, not really making a living- basically going into debt.
I guess I haven’t totally solved that one: having to exist in a world where we have to pay rent, where it’s pretty hard to step outside that paradigm completely – although the inhabitants of the factory in Rome (and other people living in squats and occupations) do challenge that paradigm. But I will say that, since I stepped into the world of “the gift” and this film, almost 5 years ago, a circle of gifts and support has appeared. The number of friends who lent me their places, their couches, their support, love and encouragement, cooked meals for me, inspired me, kept me going… all in this kind of web of reciprocity. It’s something I wouldn’t have noticed or named in the same way before working on this project, and I don’t think I could have gotten this far without that support.
Film still from GIFT, courtesy of Intuitive Pictures
How did you choose your subjects for the documentary? How did you find them? What do they all have in common, and how do they differ? How do they relate to the theme of Gift economy?
Hyde talks about this in relation to the tradition of the indigenous tradition of the potlatch, on the Pacific Northwest Coast- where the person who gives the most is the most respected person in the culture. That was one of the first passages that really struck me- I had the thought: imagine if we all saw the world that way, how different the world could be?
Hyde focuses on the Kwakuitl, now call themselves Kwak’wakwala, I did a bit of research, reached out to the community in Alert Bay, BC, and they connected me with a young artist and carver, Marcus Alfred, who was 30 and planning his first potlatch- spending years saving money, so he could give it all away. I went to BC and met Marcus and his family, spent time in the workshop where the guys were carving- and found the potlatch really was at the centre of a whole system of values, a way of seeing the world. Still going strong in the 21st century. That kind of amazed me. I think that’s when I became convinced I could make this a character-driven film.
So some of the stories, like the potlatch, connect very directly to the book. The artist Lee Mingwei, whose work I read about and loved, many years ago: Buddhist-influenced, confounding the boundaries between art and life, creating trust between strangers. While making the film, I looked him up – and discovered, synchronistically, that his work is actually directly influenced by Hyde’s thinking.
I wanted a Burning Man story as well, if only because it’s such a visually surreal and fantastical world. When I interviewed Larry Harvey, one of the founders of Burning Man, he told me when they decided to proactively make the idea of “gift economy” one of the core principles of the event, it was actually inspired by having read Hyde’s book-! Which I didn’t know, and was fascinated to hear.
The last storyline I found, an abandoned factory in Rome illegally occupied by 200 migrants and precarious workers, protected by art and artists- is maybe the less obvious story, in connection to the book. But Hyde writes “There are many connections between anarchist theory and gift exchange as an economy.” It was a story about art, that also had some political edge to it- that spoke more directly to the state of the world right now.
The themes of circularity and storytelling are central to Lewis Hyde’s book. How do you draw on these themes, and how do you interpret them? How do they relate to your film?
In the film, as he prepares for the potlatch, Marcus says “The more you can give, the bigger a chief you are. To see how many people you’re able to bring to your potlatch: and if you’ve helped people along the way, then that part shouldn’t be a problem, because the circle just goes around and around. And if somebody starts to drop off, then it no longer remains a circle.” He’s talking about reciprocity, the circle of the gift, how what we’ve given comes back to us – not always the way we expected.
All the stories have an element of this circularity- and it becomes also metaphorical, speaking to our inner gifts. “What we’ve been given needs to be given away, not kept”. Hyde begins by talking about this in terms of actual gift exchange, but then it becomes about the creative gift- that comes to us in a way we can’t demand or buy, that’s bestowed, in the manner of a gift- and that, as creative people, we need to give away again, to share and express.
You could say each of these stories, and the experiences behind them, have been a gift, entrusted to me – now I need to release this film into the world, and share the stories again, so the gift can keep moving. ☺
Film still from GIFT, courtesy of Intuitive Pictures
Why are the commons important? How can the commons and gift culture provide an antidote to the prevailing currency of excess?
Many years after The Gift, Lewis Hyde wrote a book called Common As Air, exploring this idea of the cultural commons. Of course there’s a lot of overlap between the ideas, like the importance of protecting shared spaces outside the market economy. He writes,
The free market is surrounded by full and well-elaborated speech, but the commons is not. It is therefore hard for us to reckon the value of our common assets, and hard to know how best to protect them, keep them lively, and continue to engender them. It is hard to be good stewards of a wealth so few can see or seem to care about.
In the potlatch story in the film, Marcus’ father Wayne says, “Wealth is many many things – Not just money. Money burns the cheapest of all of them.” The Gift is about the value of something that can’t be measured or counted in numbers. Protecting our common assets, and shared wealth, including the planet we live on… I think it’s becoming more urgent to consider the importance of protecting this wealth, and these spaces, before they’re bulldozed completely.
CC 4.0 license translation team members meeting in Ouagadougou, CC France, CC BY
After more than two years of dedicated effort by an extraordinary group of CC francophone community members from more than 8 countries around the globe, we are delighted to publish the official translations of our 4.0 licenses in French. More than 220 million people around the world speak French as a primary or secondary language, and French is an official language in more than two dozen countries. This effort magnifies the reach and understanding of our licenses across all continents.
The French language translation involved two face-to-face meetings in 2016, the first in Paris and the second in Ouagadougou. Unique to this translation is that participants from both civil and common law legal traditions converged on a common translation of the six licenses. CC thanks the tireless efforts of translation leads Nicolas Jupillat of CC Canada, Daniele Bourcier of CC France, and Patrick Peiffer of CC Luxembourg. These three were supported in their efforts by many over the course of the translation work, including Esther Ngom from Cameroon and Prof. Tonssira Myriam Sanou from Burkina Faso, who co-organized the Ouagadougou meeting.
The translations and the face-to-face meetings would not have been possible without funding by Wikimedia Foundation, the Ford Foundation, and the Organisation internationale de la Francophonie.
Additional thanks for their valuable contributions goes to: Dr. Etienne Alla from Côte d’Ivoire, Simon Ayedoun from Benin, Florian Ducommun of CC Switzerland, Mawusee Komla Foli-Awli from Togo, Abdou Malam Garba from Niger, Moumouni Krissiamba Ouiminga and Philomène Medah from Burkina Faso, Primavera De Filippi and Batoul Betty Merhi of CC France, Christophe Traisnel, Anne-Laure Riotte, and Gwen Franck, former CC Regional Coordinator for Europe.
For details about the translation and additional contributors to the process, please see the notes posted to our wiki here. You can expect details about the public discussion process, language choices, and other decisions to be documented there in the coming months.
