Creative Commons and “Noncommercial” Use

One of the promises of Creative Commons is the idea that all sorts of works – writing, photography, other visual arts – can be made more accessible via a workaround to state-based copyright law (here in the US, copyright attaches automatically to virtually any independent work of expression – this blog post, your cat photos, my son’s CreepyPasta entries – you name it).

It’s a good idea; the uncertainty of copyright makes it harder to share things than it should be.  For example, let’s say I found a photo online that I wanted to use on my blog.  I could try and contact the photographer and get permission to use it, but that’s an uncertain process at best.  It will take an indeterminate amount of time, with no guarantee that I will get an OK – or even any response at all.  So I’ll move on to a less-ideal choice of photoillustration, or go with no photo at all.

Creative Commons is designed to solve that sort of problem.  If the photographer assigns a Creative Commons license to the photo, I should have all the information I need from the license to know whether I can freely share it on my blog and what conditions, if any, apply (for example, attribution, restrictions on derivative works, etc.).

In practice, however, Creative Commons doesn’t work as well as it could.  There are a number of different license types, with different conditions and limitations on use.  And as Glyn Moody at Techdirt points out, license types can be freely changed by the creator of the work, leaving a previously-permitted use twisting in the wind (although CC licenses are non-revocable, it can be difficult to prove that use was under a previous license).

The biggest problem, however, is the fact that many Creative Commons licenses have limitations to noncommercial uses.

Why is this a problem?  Because very, very people actually understand what this means.   Even most attorneys don’t understand what “noncommercial” means.  And this leads not only to hurt feelings (and more restrictive licenses) when a use is made that the creator doesn’t care for, but also a lot of uncertainty among those who would otherwise use the work.

Back to my example of clipping a Creative Commons-licensed photo for a blog.  Let’s say the license is “CC BY-NC” – a widely used license permitting sharing (with attribution) and derivative works but restricting commercial use.  Well, no problem – my blog is noncommercial, right?  But what if my blog has advertising? What if it has a Cafepress store, Amazon widget, or some other form of merchandising?

What if I’m writing for the New York Times?

The answer is that – in the U.S. at least – none of these examples represent commercial use.  The fact that a publisher has a commercial motive does not mean that everything published is likewise commercial.  “Commercial” means that the work itself is resold or incorporated into something that is for sale (although there are plenty of exceptions even then, starting with fair use).  This is a basic legal principle, and it’s been reinforced time and time again.  See, for example, the Dex Media v. City of Seattle case I wrote about earlier.  Or the Browne v. Avvo suit filed by an attorney upset over his rating right after Avvo launched in 2007.  Or the latest Lindsay Lohan lunacy, involving a suit (tossed yesterday) over a reference to the troubled actress in a Pitbull song (“locked up like Lindsay Lohan”).

The fact that this principle has to be so often reinforced shows how lacking in fluency many are when it comes to the distinction between the commercial interests of a publisher and the noncommercial nature of that which is published.  And based on my anecdotal reading around this issue (and talking with many, many attorneys confused about this point), more people than not believe that “noncommercial” means that the work in question will only be used by a noncommercial entity.

So the CC BY-NC license is a half-measure that probably leaves few really satisfied.  I suspect all would be better off choosing either to stick with full copyright protection (if the thought of having your work published in for-profit media offends) or go with a wide open CC BY license – or even renounce all copyright protection entirely with a CC0 license.  Creative Commons should also consider providing more guidance around exactly what “noncommercial” means – and what it doesn’t mean.

This is Why We Can’t Have Nice Things

On the heels of a Washington State transportation budget containing a pointless, mean-spirited and counter-productive $25 tax on bicycles comes word that Seattle is preparing to pay $500,000 to settle a case brought against the city by Dex Media and other yellow pages companies.

Why?  Because several years ago, the city council thought it would be a fine idea to reduce paper clutter by imposing an opt-out registry on the yellow pages companies.  This regulation, while well-intentioned, suffered from some blatantly obvious constitutional infirmities.  But who cares – nobody loves the Yellow Pages, amiright?

Right.  But the fact that they may serve little purpose other than as monitor stands doesn’t change this fact: these publications enjoy first amendment protection as much as, say, Allan Ginsberg’s Howl.

So of course, we got the predictable lawsuit and appellate court dissection of Seattle’s law (which, by the way, offers a lot of pointers on the limits of the government to regulate speech even when it mixes editorial with commercial intent).  While the city could appeal to the Supreme Court, at least it had the sense to cut its losses now, paying the yellow pages providers half a million for putting them through this rigmarole.

This debacle-in-a-teacup offers a good example of why it’s rarely a good idea to pass “on principle” laws.  We’ve seen it a lot over the last few years with laws that try to stem the tide of gay marriage (like California’s Proposition 8 and the federal Defense of Marriage Act), and we will no doubt get a bevy of examples in the next year on the gun regulation front.  Laws passed in the wake of a tragedy or “for the children” are particularly suspect.

Enacting public policy should require thought and deliberation.  But for far too many legislators, all that’s required is to pass feel-good, grandstanding laws with obvious problems and let courts sort them out later.  This process costs us all, and is no way to govern.

WA Proposes $25 tax on Bicycles

Democrats in the Washington legislature have just announced details of the next decade’s $9.8 billion transportation budget.  Included in the budget?  A proposal for a new fee (likely a sales or excise tax) on sales of bikes costing over $500.

This is lunacy, and whichever bike-hating representative tossed it into the proposal deserves a speedy and unceremonious exit from office.

And it’s not even the fact that it lards more cost onto bikes that’s got me galled (although that IS galling, for reasons that should be obvious).  No, the bigger problem is that you’ve got one or more legislators thinking nothing of proposing a new tax – along with the concomitant set of reporting, payment and enforcement obligations – that is expected to raise $100,000 per year.

One hundred grand?  You can barely pay for one Olympia bureaucrat for that kind of money, let alone what it’s going to take to administer this new tax.  It’s the same issue that makes virtually all efforts to license bikes ineffective – the revenues generated can’t possibly cover the costs.

But hey – if you’re a legislator who hates bikes and love big government, what do you care?  Just pop your symbolic measure into a massive transportation bill and sort it out if it ever gets enacted.  Pathetic.

Cyclists and the “Moral Order of the Road”

Yes, I suppose those of us on bikes may be “annoying” to those behind the wheel, but this BBC piece from psychologist Tom Stafford posits that driver antagonism toward cyclists stems from something deeper – an innate sense that bikes disrupt the “moral order” of the road.  In other words, we’re cheaters, what with our riding-between-cars and jumping-green-lights and such.  And that makes drivers mad.

Maybe so, but one wonders how useful it is to plumb the reptilian driver brain.  There’s something about driving that lends itself to all manner of antisocial behavior.  Present company included; as someone who rides far more than he drives, I may be more aware of it these days, but I am certainly no less susceptible.

In driver mode we are paragons of impatience.   We take offense at the slightest affront.  I’m sure a psychiatrist would have some theories about what causes this: the shield of metal and glass between us and the rest of world; sublimation of feelings of powerlessness translated via an internal combustion engine; unresolved childhood trauma.  But whatever lies behind it, we act while driving in ways that would be tolerated in very few settings.

So if it’s normal for drivers to curse out someone with the temerity to merge in front of them in a perfectly legal merge lane (thereby lengthening the offended driver’s trip by a second or two), it should be expected that drivers would take umbrage at that alien invader of their environment, the bicyclist.  Particularly if the cyclist is slowing them down, or doing something dangerous.

Or even just breaking the rules.  As Stafford points out, heaps of cognitive research points to people being happy to dish out “altruistic punishments” – consequences that carry a cost to the punisher without yielding any direct benefit in return.  Think of the jaywalk scolds (a phenomenon that may be unique to Seattle), or drivers who get pissed and honk because a cyclist moves to the head of a line of stopped traffic or jumps a green light.

And I don’t know that there is a solution, at least not in the US.  It’s not safe to try and navigate any US city on a bike while scrupulously obeying rules that have been designed for cars.  That means adapting, playing by our own rules and sometimes doing things that rule-addled drivers find maddening (like creating our own bike boxes, taking the lane and running red lights).

Maybe the only answer is getting more people confidently riding bikes – so that they can be more enlightened drivers whenever they need to get behind the wheel.

Maryland Considers Helmet Law

. . . and bike advocates say NO.  As Walter Olson points out, this may be shocking to those around the nation’s capital, but it is actually possible to be both a) concerned about cycling safety, and b) not want a government “safety” mandate.

brain bucketAs I wrote last year, helmet laws are counter-productive, and in the case of Seattle and other cities, serious impediments to the launch and growth of bikeshare systems.  D.C.’s system is a joy, and could be impacted negatively by nanny-statism in the Maryland suburbs.

Here’s hoping my friends and family in Terrapin territory see fit to nix this misguided proposal.

Asking the Wrong Question: Targeted Assassination of American Citizens

All of the noise about the “President’s kill list” and the freaking out about the assassination of Americans by our own government?  It strikes me as our uniquely American bent toward litigiousness – or at least the over-lawyering that pervades so much of our lives.  And not surprisingly, it completely misses the point.

You see, I don’t care whether the people we’re targeting in drone strikes are American citizens. 

Nobody should. That question – which is what has everyone wringing their hands – is completely irrelevant.  If someone is engaging in armed hostility against the US, their citizenship doesn’t matter.  It shouldn’t matter to troops in the field or government officials.  These citizens should be treated just like any other enemy combatant.  Shot at, captured, assassinated, whatever the dictates of combat require – and all without regard to citizenship.

Now, there are some more relevant questions raised by this whole exercise, like:

  • Should we be engaging in targeted executions at all?
  • What level of decision-making is required to do so?
  • How do we determine which entities we are “at war” with?

These are the things to be concerned with – and it’s a very fair question to ask whether we’ve gone too far, and ceded too much power to the executive, in pursuit of the “global war on terror.”  

But the type of passport held by the targets of our drone strikes?  We’re missing the forest for the trees if we’re worried about that.   

Corporate Pansies

Few things set my teeth on edge like all of the “Big Game” ads around the Super Bowl.  It’s like a badge of shame; it might was well scream “we’re a bunch of pussies” or “fine, we just let the lawyers run our marketing department.”

The thing that just happened was the SUPER BOWL.  Super. Bowl.  Say it slowly:  SUUUPPPEEER BBBOOOWWWL.

Yes, the NFL can be heavy-handed with its (typically frivolous and empty) lawsuit threats over the use of the name SUPER BOWL.  But it’s not the “Big Game” or whatever other lame euphemism you want to use.  It’s the SUPER BOWL.  And every advertiser in the country has a first amendment right to refer to it by name.

If you’re a lawyer representing one of these companies, next year do us all a favor: strap on your big boy pants, quit the hand-wringing, and go out and proudly call the thing by its intended name.