Dvorak on Creative Commons: “Humbug!”
John C. Dvorak recently published this column criticizing Creative Commons. Some of his criticisms are valid; others, based on a misunderstanding of the Creative Commons licenses or the role of Creative Commons as an organization; others still, based on dangerous misconceptions about the law.
Dubbed Creative Commons, this system is some sort of secondary copyright license that, as far as I can tell, does absolutely nothing but threaten the already tenuous “fair use” provisos of existing copyright law. This is one of the dumbest initiatives ever put forth by the tech community. I mean seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes.
If we cut through the prose here, we find that Dvorak worries that Creative Commons licensing might limit users’ fair use rights. This is a misunderstanding of the license. The very first substantive paragraph of every Creative Commons license says, “Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.” How any license that so prominently and so explicitly preserves users’ fair use rights could pose a threat to those rights is difficult to imagine.
I have sent notes to this operation and never received a reply, in case you’re wondering.
A valid criticism. Five minutes on the phone with a Creative Commons staffer, and this column would have looked very different.
There are several things that bother me about this initiative. First, Creative Commons is similar to a license. You sign up with the group and post a message saying that your material is protected or covered by Creative Commons.
Here, we have another misunderstanding of the license. Creative Commons is not “similar to a license”; Creative Commons is a provider of licenses that copyright holders may apply to their works. You do not “sign up with the group”; Creative Commons doesn’t need to know or track who is using their licenses, since the license is solely between the creator and the user. You do “post a message”; this message indicates under what terms you have chosen to license your work. While Creative Commons provides some facilities for authors to announce their works and the associated license terms, Creative Commons, as an organization, does not “protect” anyone’s copyrights. More on this in a moment.
This means that others have certain rights to reuse the material under a variety of provisos, mostly as long as the reuse is not for commercial purposes. Why not commercial purposes? What difference does it make, if everyone is free and easy about this? In other words, a noncommercial site could distribute a million copies of something and that’s okay, but a small commercial site cannot deliver two copies if it’s for commercial purposes. What is this telling me?
This is telling you that you misunderstand the license. Authors who make works available under Creative Commons licenses may choose from a number of restrictions on use. They may allow all use attributing the work to the author; they may or may not prohibit commercial use; they may or may not prohibit incorporation into another work, and so on. The license terms are chosen by each individual author. Dvorak is really asking why any author would choose to limit use to noncommercial purposes. As an author who licenses works (like the one you’re reading) under such a restriction, I can tell him: it’s because, if someone wants to have the potential to make money from my work outside the bounds of fair use, I want them to ask me first.
This is nonsense. Before Creative Commons I could always ask to reuse or mirror something. And that has not changed. And I could always use excerpts for commercial or noncommercial purposes. It’s called fair use. I can still do that, but Creative Commons seems to hint that with its license means that I cannot. At least not if I’m a commercial site and the noncommercial proviso is in effect.
As noted above, no Creative Commons license ever purports to limit fair use rights, and each license explicitly preserves all such rights.
This is a bogus suggestion, because Creative Commons does not supersede the copyright laws. In fact, the suggestion is dangerous, because if someone were sued by the Creative Commons folks over normal fair use and Creative Commons won the suit, then we’d all pay the price, as fair use would be eroded further.
A major misunderstanding of the role of Creative Commons as an organization. When you distribute a work under a Creative Commons license, you don’t give Creative Commons, as an organization, any special rights. If someone started distributing your CC-licensed song without attributing it to you, Creative Commons wouldn’t and couldn’t sue on your behalf. As it says in the text of every Creative Commons license, “Creative Commons is not a party to this License.”
There’s another thing that bugs me about Creative Commons. When you see its licenses the wording will say something like “Creative Commons License: Public domain.” This means that the item is not covered by copyright but is in the public domain. So what’s Creative Commons got to do with it? Public domain is public domain. It’s not something granted by Creative Commons. Yet you see this over and over as if it were!
A valid criticism, in my opinion. While Creative Commons does make available a Public Domain Dedication process, public domain status isn’t really a Creative Commons license, and nobody should refer to it as such.
Creative Commons trying to insert itself as another layer into a system that already protects content developers like me to an extreme. I mean my grandkids will own all my writing exclusively until 75 years after I’m dead, unless I sell all the rights to someone else. What more do I want from copyright?
As noted above, Creative Commons allows authors to grant more rights to the public, not to themselves.
And, yes, I think this term of protection is ridiculously long, but why would I as a content creator want Creative Commons? What does it bring to the party? It might make it easier for people to access my material and reprint some of it. But they do that already.
When it comes to text, like Dvorak’s column, fair use works pretty well to protect the user’s legitimate interests — for example, by allowing me to quote extensively from the piece to the extent necessary to criticize it. But fair use doesn’t let me record a new version of your song, or add a soundtrack to your video, or use your photo in a digital collage. Some creators want people to be able to do that, without asking first. That’s what it brings to the party.
If I have a complaint about copyright, it’s this: I think copyright laws need to get things such as Picasso art from 1924 back into the public domain, thus allowing reprints of books from 1930 without worrying about who owns the copyright. A lot of things are lost to the public domain because of the new laws. But Creative Commons has nothing to do with Picasso or anything else except new works.
Yes! Yes, that’s exactly right! That’s why, separately from Creative Commons, the Stanford Center for Internet and Society — also founded by Lessig — is working to get those Picasso works back into the public domain.
There was always something about Creative Commons and its name that bugged me, too. The name sounds like a variation of the once-powerful Common Cause political-action committee. A ring of days gone by—nostalgia. All I see here is making the very easy and simple U.S. copyright laws more complex for no apparent reason, except maybe as a protest.
That’s just silly.
Years ago, to gain a copyright, you had to fill out a form and send in the material to the Library of Congress. Now you just use the word “copyright,” add your name and a date, and publish it. What could be easier?
Here, we have a material misstatement of the law. A copyright attaches to any fixed creative work whether or not there is any notice of copyright (e.g., “Copyright Joe Gratz 2005. All rights reserved.”). Copyright holders can sometimes get more in a lawsuit if there was notice, but since 1989, notice has not been required. Copyright attaches automatically. That’s part of the reason we need Creative Commons licenses — because silence means “nobody may use this, except under fair use, until 70 years after I die.”.
Apparently simplicity was more than some people could handle, so they invented Creative Commons to add some artificial paperwork and complexity to the mechanism. And it seems to actually weaken the copyrights you have coming to you without Creative Commons. Oh, brother!
Yes, if the author so chooses, Creative Commons licenses weaken the copyright protection that’s applied by default. That’s the whole point. But they don’t increase complexity — they reduce it. If you want to make a use of the work that’s allowed by copyright laws, such as fair use, you may ignore the Creative Commons license terms and go ahead. If you want to make a use of the work that would otherwise be a copyright infringement, you’ll have to read the terms under which the author has chosen to license the work. If your use is allowed, you go ahead; if not, you have to ask permission.
A Creative Commons license is just a way of granting permission for certain otherwise-infringing uses ahead of time, so you don’t have to take the time and trouble to ask.
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A really well put-together piece. Thanks for writing it!
Comment by Chris Wood — 19 July 2005 @ 16:38
Gratz on Dvorak on Creative Commons
Joe Gratz corrects John C. Dvorak’s muckraking mistakes about Creative Commons and copyright registration: http://www.joegratz.net/archives/2005/07/19/dvorak-on-creative-commons-humbug/: “Some of his criticisms are valid; others, based on a misunders…
Trackback by IPTAblog — 19 July 2005 @ 19:04
[…] pan. Infinite Flickr movie. Hatchet job on Dvorak’s criticism of Creative Commons. Also c […]
Pingback by Moetry.org » Tumblelog — 19 July 2005 @ 19:43
[…] pan. Infinite Flickr movie. Hatchet job on Dvorak’s criticism of Creative Commons. Also c […]
Pingback by Moetry.org » Tumblelog — 19 July 2005 @ 19:43
I can’t find an explicit reference on the Creative Commons website, but it’s my understanding that the concept of the “public domain” doesn’t exist in all legal jurisdictions. Hence the CC Public Domain Dedication is an explicit and multinational document.
Comment by PerfDave — 20 July 2005 @ 05:15
Alas, Joe, such a long and detailed response is somewhat moot. Dvorak is a paid troll; his job is to drive hits to the site with provocative BS and thus keep the advertisers happy. He has done this for years.
Comment by nick — 20 July 2005 @ 09:15
The Upside of Misunderstanding
One of the positive things about people writing badly misinformed articles like this one by John Dvorak is that the fisking process can often be educational, and in ways you don’t necessarily anticipate. If you haven’t read it yet, Dvorak…
Trackback by Copyfight — 20 July 2005 @ 13:25
[…] wearing fabulous new clothes.” Though technology freedom fighter Joe Gratz already responded masterfully to most of the inaccuracies […]
Pingback by Plagiarism Today » Defending the Commons — 20 July 2005 @ 21:51
[…] « Bye, Cap’n Yikes Joe Gratz pummels a recent article John C. Dvorak wrote in PC Mag, in which […]
Pingback by Commons Music Blog » Blog Archive » Yikes — 21 July 2005 @ 10:41
I’m hip and elite and I have the code to prove it
…According to John C. Dvorak, that is. He wrote a two-screen long diatribe against Creative Commons in his PC Magazine column. Most of the mistakes in his column are corrected elsewhere (Joe Gratz does a particularly good job). I thought I’d put in…
Trackback by The Apikorsus Companion v2.0 — 21 July 2005 @ 15:37
I doubt that John saw this on C-SPAN…. it’s still up. Check it out!
If you got a viewer that will view this click on the little red arrows next to
the title of the C-SPAN show.
Need to search “firefox rstp” to enable for firefox in some environments.
http://www.c-span.org/congress/digitalfuture.asp
My recommendations are all of them, but mostly the following two:
Thursday, March 3
Lawrence Lessig, professor of law at Stanford Law School and founder of the
Stanford Center for Internet and Society Lessig is the author of “Code and
Other Laws of Cyberspace” and an expert on the issues of copyright and
“copyleft.” He is the inventor of the revolutionary concept and
application Creative Commons, which invites the right to use material under
specific conditions.
Monday, March 28
Neil Gershenfeld, director of the Center for Bits and Atoms at the Massachusetts
Institute of Technology Gershenfeld is the author of “When Things Start to
Think.” His new concept Internet Zero (0) proposes a new infrastructure for
the existing Internet that would give an IP address to all electronic devices -
from light bulbs to Internet addresses and URLs - and interconnect them
directly, thereby eliminating much intermediating code and server technology.
His topic is “From the Library of Information to the Library of
Things.”
While they are posted if you missed the programs then this is the next thing to
TiVo or MythTV…
Comment by Groklaw Reader — 21 July 2005 @ 16:26
A misunderstanding of Creative Commons
Joe Gratz, a recent law school graduate has done a thorough job of disecting John Dvorak’s…
Trackback by Alex Barnett blog — 21 July 2005 @ 21:25
[…] good reply to the recent article by Dvorak’s “Creative Commons Humbug” joegratz.net » Dvorak on Creative Commons: %u201CHumbug!%u201D
[…]
Pingback by wrote » joegratz.net » Dvorak on Creative Commons: %u201CHumbug!%u201D — 21 July 2005 @ 23:11
Creative Commons, although originating in the USA, is a worldwide idea.
In the UK we do not have “fair use”, therefore the right to use material without approval by the copyright holder/originator is less than that in the USA.
Creative Commons licences are therefore a convenience to authors who would like their material disseminated, and do not wish to be interrupted by people asking permission, nor to delay people in their use of the material.
I think that alter, re-use and attribute licences have something to offer in medical work.
Comment by Adrian Midgley — 22 July 2005 @ 02:13
Creative Commons
Have you wondered what that Creative Commons picture at the bottom left of my blog is about? Ever seen it elsewhere and wondered what’s going on? Well, the Creative Commons is an organisation that produces copyright licences. By default, under c…
Trackback by / musing / struggling / dreaming / — 22 July 2005 @ 05:42
excellent disection and analysis :) I just deeply research Creative Commons myself, as I run a music hosting service [ http://www.artistserver.com ] and wanted to help my artists ‘protect’ their music. While CC doesn’t really protect anything - it does lay down some foundation for a new perspective on content - making people more aware.
>>> Apparently simplicity was more than some people could handle, so they invented Creative Commons to add some artificial paperwork and complexity to the mechanism.
wow. That’s halarious. Dvorak is lost? John… here’s simple… User logs into Website - uploads their music - names their song in a text filed and clicks twice to select a CC license - no paper - no work - little time - and oh so simple! And yes - the artists can choose standard copyright - and it’s just as simple.
great reply - thanks for the read!
Comment by Gideon Marken — 22 July 2005 @ 07:58
John Dvorak gets it wrong again
See that “Some rights reserved” badge to the right? Sure you do.
Trackback by Vitalsecurity.org — 22 July 2005 @ 08:11
[…] ative Commons, anyway?
Filed under: Musings — Tammy @ 2:15 pm
In a posting on his blog, Joe Gratz debunks an article by John Dvorak […]
Pingback by The Wanderings of a Wanton Wordsmith » What is the Creative Commons, anyway? — 22 July 2005 @ 14:16
Dvorak has been ranting about various things for years.
What he missed, and frankly you missed, is that the value of Creative Commons is that it reduces annoyance. Unless someone wants to make money from a Creative Commons work, they don’t have to bug the author for permission. What does that create?
Fewer headaches for authors.
Comment by dejah — 22 July 2005 @ 17:53
To add to PerfDave’s comment, my understanding is that even in the US it is no longer possible to legally “put something in the public domain” — all you can do is grant all rights to everyone (which I gather is what the CC PD license does). This was a consequence of the same changes to the law that removed the requirement to write “(C)” on copyrighted works. (Attach disclaimer haiku here.)
Comment by Bug — 23 July 2005 @ 21:33
I like your response. I used some of your explanation, and linked you, from my own response.
I decided to do something a little more creative and use Dvorak’s style in writing my response, entitled John C. Dvorak Humbug:
http://xentac.net/~jchu/blog/humour/john-c-dvorak-humbug.html
Comment by Xentac — 24 July 2005 @ 12:29
I stopped reading PC Mag years ago because of JCDvorak. Others should do the same, maybe then they will sack him. In the mean-time, so long as everyone keeps clicking the link to his “article”, they keep raking in the doh… So stop it. The best defense to a lune is to turn your backs and keep silent. It takes his power away.
Comment by Mike — 24 July 2005 @ 16:46
This is an excellent rebuttal, but there are a lot of concerns that even CC proponents may have about Creative Commons.
(See my post here http://www.imaginaryplanet.net/weblogs/idiotprogrammer/?p=83398278 ).
(Unfortunately my comment section is down for the time being).
Creative Commons hasn’t really been tested in Courts yet, so it’s hard to say how effective it is in preventing commercial use of works when the license was noncommercial.
As someone currently working on a community site to promote CC works, I have a hard time figuring out what I can and can’t do and still be able to host CC noncommercial content. The issues are very hard, and we shouldn’t pretend otherwise.
Comment by Robert Nagle — 26 July 2005 @ 09:52
[…] ast, John C. Dvorak admits he was wrong about Creative Commons in the article I criticized here. The rest of the discussion, with special guest Larry Lessig […]
Pingback by joegratz.net » Dvorak Recants on Creative Commons Humbug — 27 October 2005 @ 17:58