CC/FOSS Workshop

(C) Copyright 2006 -- Benjamin Mako Hill
Distributed under the terms of the Creative Commons Attribution License

Presentation on 2006-09-16 at Wizards of OS by Benjamin Mako Hill
Part of a workshop/panel debate between Benjamin Mako Hill and Lawrence Lessig


These are talk notes. They are not a prepared paper or even a prepared talk. Please take care before quoting them and contact me to clarify any thing that is unclear.


Two major critiques I've been involved in the sort of free culture/free content community.

  1. A call for a sort of normative stance;
  2. A really nascent sort of call for a particular normative stance;

I'm just going to try to summarize both of these arguments because I don't think that I can assume that either of these are going to be very familiar to the people in this audience.


Free Software

But I think that there have been a few mistakes in citing free software for a number of reasons.

Many people talk about major artifact of FOSS as the GPL. They are wrong. The major artifact is FSD.

We'll go back to the FSD first:

Copyleft sort of fits in on top of this. It's extra.

The GPL was not the first free software license and people can be flexible with many things outside:

FOSS is license agnostic. When IBM or Sun wants to do things in a different way they can. The licenses are the essential piece -- this is why the FSF is important -- but they are not essential. Is it the definition of freedom that is important.

FOSS is a movement to get those freedoms.

The result of this:

Free Software is a rallying cry. It is a goal. There are things that are too much.

You don't have to do free software. But you have to reach a certain threshold if you want do want to.


Creative Commons and the Free Culture Movement has, since day one, been explicitly related to free software.

CC has been launched largely at FOSS/libre software conferences all around the world.

But CC is fundamentally different for reasons I will talk about soon.

Contains a number of mix-and-match license clauses:

Also, there was a Public Domain dedication which was rather "None of the Above."

Then, there was the expansion of the stable to include two new licenses:

What CC Got Wrong

No Definition of Freedom

The website reads:

Creative Commons offers a flexible range of protections and freedoms for authors and artists. We have built upon the "all rights reserved" of traditional copyright to create a voluntary "some rights reserved" copyright. We're a nonprofit. All of our tools are free.

Should freedom really be flexible?

The fact is, CC has no definition of freedom. None at all. There is no bar. This means the CC process can happen.

What those looking to CC as way of translating Free Software's success to literature, music, and video need to realize, and rarely do, is that CC itself -- as a organization, movement, or term -- sets no defined limits and promises no freedoms, no rights, and no fixed qualities.

The only similar quality to all pre-recombo licenses was verbatim use. Now, even that bar is removed.

There are different definitions of what should be free enough and I want to avoid that debate now. Two interesting perspectives are:

  • The "Debian-Legal" perspective (i.e., code is software");
  • The Gilberto Gil perspective;
  • The Richard Stallman perspective (the recombo broke the back);

At the International Free Software Forum and elsewhere across the world, Lessig personally describes the way that Creative Commons, "gives users the freedom to choose how their works are used." Important or not, this is not freedom in the sense that the term is used in Free Software. It is not the model that has made Free Software successful.

CC gives us freedom of choice... "the freedom to choose how the software is used."

The ultimate difference:

  • People's natural conservatism has taken over and there is a net loss of freedom;
  • Less freedom as a result:
    • 3/4 of people use non-commercial use clauses
    • 95% use attribution
    • many use non-deriv

CC's goal to escape a world of "all rights reserved" is laudable but they fail to describe what it will be replaced with except to say it will be better. While something slightly better is surely desirable, it might also be too little. Balance, compromise and moderation are goals but undefined, unlimited, and unchecked, natural and intentional conservatism risks reducing CC's concept of balance toward little more than "slightly better than the status quo."