NonCommercial Sharealike Is Not Copyleft

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Creative Commons (CC) Attribution-ShareAlike-NonCommercial (BY-NC-SA, NC-SA for short) is not copyleft.

This may seem counterintuitive. After all, ShareAlike is copyleft isn't it? Well, no it isn't.

Copyleft is, as its name implies, a reversal of copyright. It restores and protects the rights that copyright removes and makes alienable. The rights, not some rights.

ShareAlike takes a gift economy-style view of one of the effects of copyleft; the effect of quid pro quo. Copyleft has, as a side effect of its operation, the effect of requiring that people share their work in order to have access to other people's work. They have to share, and everyone has to share and share alike. Hence the name of the ShareAlike module of CC's licences.

But we can share and share our work alike without maintaining people's rights. Linus's argument that Tivo should be able to share their source without respecting people's rights to actually be able to do anything with it illustrates this. For Linus, quid pro quo trumps people's rights. Quite how he could have developed Linux if everyone else had respected his rights so little is a mystery for another time.

And we can use the legal mechanism that copyleft uses to protect people's rights, reciprocal licencing, without using that mechanism to protect people's rights. You could make a reciprocal EULA for a proprietary operating system that required you to charge anyone you give a copy to a hundred dollars and send ninety to the corporation that publishes that operating system. That would be reciprocal licensing, and you could share the software under the same terms your received it. So the corporation's marketing department could easily argue that this is ShareAlike as well as reciprocal licensing. It is obvious that this is not copyleft. It has neither the intent nor the effects of copyleft. It would be very useful for marketing and political reasons for people who don't actually want to respect the rights of others to be able to call this copyleft and gain kudos by association with actual copyleft, but very few people would be fooled.

All this said, ShareAlike has most of the practical effects of copyleft. So it is probably a reasonable substitute for copyleft at the moment. It is only when confusing copyleft with some of its effects leads people to ignore what copyleft actually does that it becomes a problem.

For example when people confuse reciprocal non-commerciality with copyleft.

NC-SA is not copyleft because the presence of NonCommercial restrictions breaks copyleft. It removes rights, and even in the terminlogy of ShareAlike it does not Share Alike with the originally licencing author. Arguing that NonCommercial ShareAlike restores some rights, that copyleft is just reciprocal licencing, or that you are still sharing the work does cannot make NC-SA seem any more like copyleft. NC removes enough of copyleft from SA to no longer qualify as copyleft.

Calling NC-SA copyleft is therefore a mistake. I am not saying that it is necessarily or always a malicious mistake. Far from it, it is a mistake that people seem to make from the best of intentions. But it is a mistake that people should avoid making and should explain when they come across others making it.

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9 Comments

"But, if I don't have to pay for others' copyleft software and I'm not allowed to charge for source code to the copyleft software I publish, doesn't that mean that copyleft is necessarily non-commercial? Surely CC-NC-SA is actually the equivalent copyleft license?"

We have Lessig to thank for this abominable pick'n'mix approach to authorial copyright licensing - instead of a principled copyleft license that undoes copyright (instead of merely moderating it). Qualifiers like 'NC' or 'ND' serve as shibboleths to identify those who haven't quite got it yet.

I hope this informative post of yours helps well meaning self-publishers avoid one of the more subtle pitfalls.

It is not the author's right to freely choose how they suspend the liberty of their audience, but their unethical privilege.

Creative commons is a quagmire, and things like "Approved for Free Cultural Works" are too little, too late. So, drain the swamp - abolish copyright.

I was particularly amused by this item:
http://creativecommons.org/weblog/entry/8069

The ACLU struggles for liberty, and with CC-NC-ND, demonstrates it is also prepared to grant its readers the liberty to copy its great words, but NO liberty to build upon them and NO liberty to be rewarded for any such efforts.

I hope it's a simply a case that they haven't paid much attention to the aspects of liberty concerning copyright and that some minion picking a license for the website thought CC-NC-ND would be acceptable (which someone at CC News noticed).

However, if the ACLU have thought about it a lot, they haven't thought very well about it...

Hi,
Thanks lot for caring about "Free Culture, Free Software, Free Society"
I want to invite you to submit a paper for Communia http://communia-project.eu/about workshop in Vilnius, Lithuania on March 31, 2008 called “Ethical Public Domain: Debate of Questionable Practices”.
Communia is an event which can have significant influence on EU policies toward copyright issues in Europe and consequently in a wider world too. We ( international internet grassroots network Mincius Sodas http://www.worknets.org/wiki.cgi ) are working in, and promoting Public Domain . Please consider tsubmit one page position paper in the Public Domain
so that we might present it on your behalf as we will organize debates on issue of Public Domain.
Please see: http://www.ethicalpublicdomain.org/wiki.cgi?CommuniaWorkshop
Thank you!
Kind Regards, Sasha Mrkailo

Creative commons is a quagmire, and things like “Approved for Free Cultural Works” are too little, too late. So, drain the swamp - abolish copyright.

Crosbie, that's quite a leap, but go for it!

I agree that the ACLU using BY-NC-ND is pretty uninspiring.

Rob, thanks for making the distinction between copyleft and not-copyleft so clear, I'm sure I'll be referring to this post in the future.

I'm a musician (just beginning, realy) who uses a very restrictive Creative Commons license for my work right now (BY-NC-ND - the "Music Sharing" license). I'm also an FSF member and a huge supporter of free software, and I want to be a supported of truly free culture as well (not the CC pix and mix).

I've very conflicted over the NC and ND clauses. Reading your articles have helped. I would like to be convinced that something like the BY-SA is the way to go, but I still have a few hangups.

== Commercial use ==

Crosbie's mention in passing about "NO liberty to be rewarded for any such efforts" in terms of creating derivatives seems to me an extremely valid reason to all commercial use.

But... what about royalties for radio airplay? A CC BY-SA waives the artists ability to collect such royalties. Why would that be desirable, to give commercial radio stations a free pass?

== Derivatives ==

I think this does make sense, for music, but articles like this demonstrate how derivatives of works of art can be much more damaging (and less useful) than derivatives of functional works (like software).

In other words, you couldn't really "vandalize" software, no one would use it because it's purpose is to be functional. But to vandalize a work of art, for example to "remix" it with something pornographic? Is that really a necessary freedom? *shrugs*

That isn't as much of a big deal for me though.

Though... people shouldn't have the ability to change your opinion, doesn't some art convey the opinion of the artist? Should one be allowed to change the lyrics of a song?


More importantly... should copyright really be abolished entirely? Isn't there *some* value in the original intent? Wouldn't reserving musicians the abilities to collect royalties for airplay on commercial stations (for a LIMITED amount of time, say <15 years) be an incentive for the creation of works?

When I heard RMS speak about copyright last summer, he divided copyrightable works into three categories: functional works, works of opinion and works of art. He said functional works (e.g. software, textbooks) should have the four freedoms. For works of opinion, you should only be able to redistribute verbatim copies, you shouldn't be able to modify someone else's opinion. But for works of art, he said that was the one section where a limited copyright could actually be useful.


Please convince me why I should adopt a truly free license for my works rather than using a non-free Creative Commons license to reserve the rights granted by copyright laws that are actually somewhat reasonable!

Mike - Thanks. After writing this I was struck by a useful practical example: OpenStreetMap's work on a reciprocal licence for data makes more sense as "ShareAlike" rather than "Copyleft".

Blaise - I'll see what I can do. I'll get a post together in the next couple of days. Loca Records (http://locarecords.com/) have published all their stuff BY-SA for years so they can speak from experience. I'd recommend getting in touch with them to ask about their practical experience with the licence. They're cool.

"When I heard RMS speak about copyright last summer, he divided copyrightable works into three categories: functional works, works of opinion and works of art. He said functional works (e.g. software, textbooks) should have the four freedoms. For works of opinion, you should only be able to redistribute verbatim copies, you shouldn't be able to modify someone else's opinion. But for works of art, he said that was the one section where a limited copyright could actually be useful."

RMS sure has some strange notions. How on earth can you change someone's opinion by changing their words? You can misrepresent their opinion through falsehood, but modification of words by itself is not sufficient to create falsehood or misrepresentation. You must also misrepresent the modified words as those of the original author (which may occur by implication if the modifying author is negligent in emphasising the creation of a new work).

There is a danger in accepting the dogma of freedom, and believing that because RMS coincidentally undid the constraints of copyright for software he is qualified to sanction copyright's constraint on other forms of art.

Copyright is a nasty piece of legislation no matter what art or artists it constrains.

http://www.digitalproductions.co.uk/index.php?id=55

For works of opinion you should at least be allowed to annotate it (making it clear which parts are annotations and so on), format-shift it, etc. And for any works, you should at least still be allowed to do anything you want with it for private use. The copyright law is also too restrictive in other ways too.

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This page contains a single entry by Rob Myers published on February 24, 2008 10:27 PM.

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