Journal tags: licensing

Back when the web was young, it wasn’t yet clear what the rules were. Like, could you really just link to something without asking permission?

Then came some legal rulings to establish that, yes, on the web you can just link to anything without checking if it’s okay first.

What about search engines and directories? Technically they’re rifling through all the stuff we publish and reposting snippets of it. Is that okay?

Again, through some legal precedents—but mostly common agreement—everyone decided that on balance it was fine. After all, those snippets they publish are helping your site get traffic.

In short order, search came to rule the web. And Google came to rule search.

The mutually beneficial arrangement persisted uneasily. Despite Google’s search results pages getting worse and worse in recent years, the company’s huge market share of search means you generally want to be in their good books.

Google’s business model relies on us publishing web pages so that they can put ads around the search results linking to that content, and we rely on Google to send people to our websites by responding smartly to search queries.

That has now changed. Instead of responding to search queries by linking to the web pages we’ve made, Google is instead generating dodgy summaries rife with hallucina… lies (a psychic hotline, basically).

Google still benefits from us publishing web pages. We no longer benefit from Google slurping up those web pages.

With AI, tech has broken the web’s social contract:

Google has steadily been manoeuvring their search engine results to more and more replace the pages in the results.

As Chris puts it:

Me, I just think it’s fuckin’ rude.

Google is a portal to the web. Google is an amazing tool for finding relevant websites to go to. That was useful when it was made, and it’s nothing but grown in usefulness. Google should be encouraging and fighting for the open web. But now they’re like, actually we’re just going to suck up your website, put it in a blender with all other websites, and spit out word smoothies for people instead of sending them to your website. Instead.

Ben proposes an update to robots.txt that would allow us to specify licensing information:

Robots.txt needs an update for the 2020s. Instead of just saying what content can be indexed, it should also grant rights.

Like crawl my site only to provide search results not train your LLM.

It’s a solid proposal. But Google has absolutely no incentive to implement it. They hold all the power.

Or do they?

There is still the nuclear option in robots.txt:

User-agent: Googlebot
Disallow: /

That’s what Vasilis is doing:

I have been looking for ways to not allow companies to use my stuff without asking, and so far I coulnd’t find any. But since this policy change I realised that there is a simple one: block google’s bots from visiting your website.

The general consensus is that this is nuts. “If you don’t appear in Google’s results, you might as well not be on the web!” is the common cry.

I’m not so sure. At least when it comes to personal websites, search isn’t how people get to your site. They get to your site from RSS, newsletters, links shared on social media or on Slack.

And isn’t it an uncomfortable feeling to think that there’s a third party service that you absolutely must appease? It’s the same kind of justification used by people who are still on Twitter even though it’s now a right-wing transphobic cesspit. “If I’m not on Twitter, I might as well not be on the web!”

The situation with Google reminds me of what Robin said about Twitter:

The speed with which Twitter recedes in your mind will shock you. Like a demon from a folktale, the kind that only gains power when you invite it into your home, the platform melts like mist when that invitation is rescinded.

We can rescind our invitation to Google.

Creative Commons licences have a variety of attributes, that can be combined together:

• No-derivatives: the work can be reused, but not altered.
• Attribution: the work must be credited.
• Share-alike: any derivates must share the same licence.
• Non-commercial: the work can be used, but not for commercial purposes.

That last one is important. If you don’t attach a non-commercial licence to your work, then your work can be resold for profit (it might be remixed first, or it might have to include your name—that all depends on what other attributes you’ve included in the licence).

If you’re not comfortable with anyone reselling your work, you should definitely choose a non-commercial licence.

Flickr is planning to sell canvas prints of photos that have been licensed under Creative Commons licenses that don’t include the non-commercial clause. They are perfectly within their rights to do this—this is exactly what the licence allows—but some people are very upset about it.

Jeffrey says it’s short-sighted and sucky because it violates the spirit in which the photos were originally licensed. I understand that feeling, but that’s simply not the way that the licences work. If you want to be able to say “It’s okay for some people to use my work for profit, but it’s not okay for others”, then you need to apply a more restrictive licence (like copyright, or Creative Commons Non-commercial) and then negotiate on a case-by-case basis for each usage.

But if you apply a licence that allows commercial usage, you must accept that there will be commercial usages that you aren’t comfortable with. Frankly, Flickr selling canvas prints of your photos is far from a worst-case scenario.

I licence my photos under a Creative Commons Attribution licence. That means they can be used anywhere—including being resold for profit—as long as I’m credited as the photographer. Because of that, my photos have shown up in all sorts of great places: food blogs, Wikipedia, travel guides, newspapers. But they’ve also shown up in some awful places, like Techcrunch. I might not like that, but it’s no good me complaining that an organisation (even one whose values I disagree with) is using my work exactly as the licence permits.

Before allowing commercial use of your creative works, you should ask “What’s the worst that could happen?” The worst that could happen includes scenarios like white supremacists, misogynists, or whacko conspiracy theorists using your work on their websites, newsletters, and billboards (with your name included if you’ve used an attribution licence). If you aren’t willing to live with that, do not allow commercial use of your work.

When I chose to apply a Creative Commons Attribution licence to my photographs, it was because I decided I could live with those worst-case scenarios. I decided that the potential positives outweighed the potential negatives. I stand by that decision. My photos might appear on a mudsucking site like Techcrunch, or get sold as canvas prints to make money for Flickr, but I’m willing to accept those usages in order to allow others to freely use my photos.

Some people have remarked that this move by Flickr to sell photos for profit will make people think twice about allowing commercial use of their work. To that I say …good! It has become clear that some people haven’t put enough thought into their licensing choices—they never asked “What’s the worst that could happen?”

And let’s be clear here: this isn’t some kind of bait’n’switch by Flickr. It’s not like liberal Creative Commons licensing is the default setting for photos hosted on that site. The default setting is copyright, all rights reserved. You have to actively choose a more liberal licence.

So I’m trying to figure out how it ended up that people chose the wrong licence for their photos. Because I want this to be perfectly clear: if you chose a licence that allows for commercial usage of your photos, but you’re now upset that a company is making commercial usage of your photos, you chose the wrong licence.

Perhaps the licence-choosing interface could have been clearer. Instead of simply saying “here’s what attribution means” or “here’s what non-commercial means”, perhaps it should also include lists of pros and cons: “here’s some of the uses you’ll be enabling”, but also “here’s the worst that could happen.”

Jen suggests a new Creative Commons licence that essentially inverts the current no-derivates licence; this would be a “derivative works only” licence. But unfortunately it sounds a bit too much like a read-my-mind licence:

What if I want to allow someone to use a photo in a conference slide deck, even if they are paid to present, but I don’t want to allow a company that sells stock photos to snatch up my photo and resell it?

Jen’s post is entitled I Don’t Want “Creative Commons By” To Mean You Can Rip Me Off …but that’s exactly what a Creative Commons licence without a non-commercial clause can mean. Of course, it’s not the only usage that such a licence allows (it allows many, many positive scenarios), but it’s no good pretending it were otherwise. If you’re not comfortable with that use-case, don’t enable it. Personally, I’m okay with that use-case because I believe it is offset by the more positive usages.

And that’s an important point: this is a personal decision, and not one to be taken lightly. Personally, I’m not a professional or even amateur photographer, so commercial uses of my photos are fine with me. Most professional photographers wouldn’t dream of allowing commercial use of their photos without payment, and rightly so. But even for non-professionals like myself, there are implications to allowing commercial use (one of those implications being that there will be usages you won’t necessarily be happy about).

So, going back to my earlier question, does the licence-choosing interface on Flickr make the implications of your choice clear?

Here’s the page for applying licences. You get to it by going to “Settings”, then “Privacy and Permissions,” then under “Defaults for new uploads,” the setting “What license will your content have.”

On that page, there’s a heading “Which license is right for you?” That has three hyperlinks:

1. A page on Creative Commons about the licences,
2. Frequently Asked Questions,
3. A page of issues specifically related to images.

In that list of Frequently Asked Questions, there’s What things should I think about before I apply a Creative Commons license? and How should I decide which license to choose? There’s some good advice in there (like when in doubt, talk to a lawyer), but at no point does it suggest that you should ask yourself “What’s the worst that could happen?”

So it certainly seems that Flickr could be doing a better job of making the consequences of your licensing choice clearer. That might have the effect of making it a scarier choice, and it might put some people off using Creative Commons licences. But I don’t think that’s a bad thing. I would much rather that people made an informed decision.

When I chose to apply a Creative Commons Attribution licence to my photos, I did not make the decision lightly. I assumed that others who made the same choice also understood the consequences of that decision. Now I’m not so sure. Now I think that some people made uninformed licensing decisions in the past, which explains why they’re upset now (and I’m not blaming them for making the wrong decision—Flickr, and even Creative Commons, could have done a better job of providing relevant, easily understable information).

But this is one Internet Outrage train that I won’t be climbing aboard. Alas, that means I must now be considered a corporate shill who’s sold out to The Man.

Pointing out that a particular Creative Commons licence allows the Klu Klux Klan to use your work isn’t the same as defending the Klu Klux Klan.

Pointing out that a particular Creative Commons licence allows a hardcore porn film to use your music isn’t the same as defending hardcore porn.

Pointing out that a particular Creative Commons licence allows Yahoo to flog canvas prints of your photos isn’t the same as defending Yahoo.

One of the other speakers at this year’s Webstock was Matthew Inman. While he was in Wellington, he published a new Oatmeal comic called I tried to watch Game of Thrones and this is what happened.

I can relate to the frustration he describes. I watched most of Game of Thrones while I was in Arizona over Christmas. I say “most” because the final episode was shown on the same day that Jessica and I were flying back to the UK. Once we got back home, we tried to obtain that final episode by legal means. We failed. And so we torrented it …just as described in Matt’s comic.

Andy Ihnatko posted a rebuttal to the Oatmeal called Heavy Hangs The Bandwidth That Torrents The Crown in which he equates Matt’s sense of entitlement to that described by Louis C.K.:

The single least-attractive attribute of many of the people who download content illegally is their smug sense of entitlement.

As Marco Arment points out, Andy might be right but it’s not a very helpful approach to solving the real problem:

Relying solely on yelling about what’s right isn’t a pragmatic approach for the media industry to take. And it’s not working. It’s unrealistic and naïve to expect everyone to do the “right” thing when the alternative is so much easier, faster, cheaper, and better for so many of them.

The pragmatic approach is to address the demand.

I was reminded of this kind of stubborn insistence in defending the old way of doing things while I was thinking about …advertising.

Have a read of this wonderful anecdote called TV Is Broken which describes the reaction of a young girl thitherto only familiar with on-demand streaming of time-shifted content when she is confronted with the experience of watching “regular” television:

“Did it break?”, she asks. It does sometimes happen at home that Flash or Silverlight implode, interrupt her show, and I have to fix it.

“No. It’s just a commercial.”

“What’s a commercial?”, she asks.

“It is like little shows where they tell you about other shows and toys and snacks.”, I explain.

“Why?”

“Well the TV people think you might like to know about this stuff.”

“This is boring! I want to watch Shrek.”

Andy Ihnatko might argue that the young girl needs to sit there and just take the adverts because, hey, that’s the way things have always worked in the past, dagnabbit. Advertising executives would agree. They would, of course, be completely and utterly wrong. Just because something has worked a certain way in the past doesn’t mean it should work that way in the future. If anything, it is the media companies and advertisers who are the ones debilitated by a sense of self-entitlement.

Advertising has always felt strange on the web. It’s an old-world approach that feels out of place bolted onto our new medium. It is being interpreted as damage and routed around. I’m not just talking about ad-blockers. Services like Instapaper and Readability—and, to a certain extent, RSS before them—are allowing people to circumvent the kind of disgustingly dehumanising advertising documented in Merlin’s Noise to Noise Ratio set of screenshots. Those tools are responding to the customers and readers.

There’s been a lot of talk about advertising in responsive design lately—it was one of the talking points at the recent Responsive Summit in London—and that’s great; it’s a thorny problem that needs to be addressed. But it’s one of those issues where, if you look at it deeply enough, keeping the user’s needs in mind, the inevitable conclusion is that it’s a fundamentally flawed approach to interacting with readers/viewers/users/ugly bags of mostly water.

This isn’t specific to responsive design, of course. Cennydd wrote about the fundamental disconnect between user experience and advertising:

Can UX designers make a difference in the advertising field? Possibly. But I see it as a a quixotic endeavour, swimming against the tide of a value system that frequently causes the disempowerment of the user.

I realise that in pointing out that advertising is fundamentally shit, I’m not being very helpful and I’m not exactly offering much in the way of solutions or alternatives. But I rail against the idea that we need to accept intrusive online advertising just because “that’s the way things have always been.” There are many constructs—advertising, copyright—that we treat as if they are immutable laws of nature when in fact they may be outmoded business concepts more suited to the last century (if they ever really worked at all).

So when I see the new IAB Display Advertising Guidelines which consist of more of the same shit piled higher and deeper, my immediate reaction is:

“This is boring! I want to watch Shrek.”

I’ve found that releasing my Flickr pictures under a Creative Commons licence has been very rewarding. My pictures have been used in all sorts of places and most people are kind enough to drop me a line and let me know when they use one of my photos. Say, for example, that the site More Than Living wanted to illustrate the article entitled What is a manbag? with a very fetching picture of Richard.

By far the most prolific example was when one of my pictures was used in Iron Man. That story must have resonated with a lot of people because it spread far and wide; as far as some national newspapers in Spain. After the hubbub died down a bit, I was contacted by Jennifer Cassidy, a graphic design student in Dublin. She’s writing a thesis on Creative Commons licensing and asked if I would answer some questions for her. Amazingly, I actually responded (those who know me and my lackadaisical attitude to e-fail—or anyone who’s ever written to me expecting a reply—will appreciate how unusual that is).

Here are her questions and my answers.

1. How did you discover/first learn about CC licensing?

   I’m not really sure. It might have been when I came across Cory Doctorow’s novel Down And Out In The Magic Kingdom, which was released under a Creative Commons licence. That was published in 2003.

2. What does Creative Commons mean to you?

   Clarity. Creative Commons sets out quite clearly what uses are and aren’t allowed. That dispels a lot of doubt and uncertainty. Under standard copyright, it isn’t nearly as clear-cut as to what usage is and isn’t permitted. Given this uncertainty, I think most people assume that any kind of reuse is breaking copyright law (even in countries where situations like “fair use” are, in fact, permitted).

3. Why were you attracted to this idea of “Some Rights Reserved” as opposed to “All Rights Reserved”?

   “All Rights Reserved” is a very blunt, black and white decree. That simply doesn’t map to most copyright holders’ view of their work. There’s a world of difference between somebody ripping off your work in order to resell it and somebody making a single copy of your work for educational purposes. “Some Rights Reserved” provides a good middle ground. A non-commercial licence, for example, clearly covers the use cases I’ve just outlined. If the only alternative to “All Rights Reserved” were “No Rights Reserved”, that would not satisfy most copyright holders (although some people do indeed relinquish their work into the public domain).

4. Do you describe yourself as part of the free culture movement?

   Absolutely. The irony is that the Free Culture movement is viewed as some kind of modern, radical idea when, in fact, it’s more like a return to the natural state of culture as a shared commons. Traditional Irish music is a good example of this shared culture. The very recent addition of copyright into this mix hasn’t gelled well with the older system. I view the Free Culture movement as a return to a more comfortable human-centred system. In the long term, the twentieth century might just be an aberrant blip on the cultural timeline. Or, if the Free Culture movement fails, the twentieth century might be seen as the time when culture began to wither and die, asphyxiated by the choke-hold of de-facto copyright in perpetuity.

5. Why do you feel the need to use CC licensing on your photography?

   To be honest, my initial reasons were quite selfish. I often received emails from people who wanted to use a photo of mine for some minor use; to illustrate a blog post, for example. Those people had to wait for me to reply and tell them that that would be fine. But I’m terrible at writing back to people (as you know) so I had a constant feeling of guilt that I hadn’t replied to somebody. By releasing my pictures under a Creative Commons attribution licence, I’m making it clear that anybody is free to reuse my work as long as they provide a credit. Mind you, I still get emails from some people asking me if they can have permission to use one of my pictures but now at least I don’t feel guilty for not getting back to them.

6. Do you use it on any other types of creative work?

   Yes, when I speak at conferences—usually on the subject of web design—I publish the presentations under a Creative Commons attribution licence. I now regret that some older works of mine were published under more restrictive licensing. I’ve written two books and I wish that I could distribute the contents of those books more widely but the contracts I signed with the book publishers prevent that (for now).

7. Do you feel that the development of CC internationally is highly important in this day and age, where the internet allows fast easy sharing, reusing remixing of ideas, knowledge and creations?

   Completely. And although I’m personally committed in the area of Free Culture, the success of a Science Commons is potentially the greater achievement. The World Wide Web was created to facilitate shared scientific work. The technology is now in place. Now it’s just a question of how long it takes legal systems to catch up.

8. Are you against Copyright?

   Definitely not. Creative Commons licensing isn’t anti-copyright. Quite the opposite; it clarifies copyright and permitted usage. I am, however, against prohibitively long copyright terms. Copyright extension is inexorably leading to copyright in perpetuity, something that goes completely against the spirit in which the idea of copyright was first formulated.

9. Or do you feel that CC licensing is just a continuation/development of Copyright, that gives you more freedom to choose exactly how your work is used by others and still giving you the protection you as an author actually want?

   You took the words right out of my mouth …which is permitted …as long as you include attribution.

10. Do you yourself use other people’s work licensed under CC? If so, what resources do use, i.e. Flickr etc.?

    I’ve made copious use of Creative Commons licensed Flickr photos in my presentations (which are themselves released under a Creative Commons licence). I’ve also used Creative Commons licensed music—sometimes called podsafe music—in my forays into podcasting.

11. Do you think that society as whole could benefit a great deal if people used CC licensing more often, if they were more willing to share and share alike?

    I do believe that but I don’t have any empirical evidence to support that view so that’s simply personal belief. However, there’s good evidence to suggest that restrictive licensing and prohibitively long copyright terms almost certainly lead to lost opportunity. So more sharing would at least provide a better ecosystem for society to flourish in.

12. Do you not care too much about how people use your work, or do use CC for a bigger more substantial reason, i.e. for a better society and a greater common intelligence?

    I would love to say that I share my work for some greater good but I’d be lying. The truth is that an attribution licence is great for my ego. I can keep track of my pictures and boast about all the different places they show up. I’m such an attention whore.

13. What is your stance on music downloading?

    I think it’s the greatest gift that musicians could ask for. Instead of being beholden to an industry of middlemen, musicians can now provide their music directly to the people who appreciate it.

14. Gerd Leonhard, a leading futurist, states that Copyright is clearly not working. When it comes to the topic of illegal music downloads no can really argue that this statement is wrong. Copyrighting something is essentially useless if it is up-loadable, the internet providing the means. But music licensed under CC is making impressive headway. Im sure you’ve heard of the band NIN? Well they have released their album Ghosts I-IV under CC, allowing several of their songs to be downloaded, for free on their official website. This album, according to amazon.com was the best selling MP3 download album of 2008! This seems to prove that CC can work extremely well. Do you think that CC is the way forward for a healthy future in the music industry?

    I think it’s a great avenue for musicians to explore. Again, the real value is in the nuanced licensing that Creative Commons affords. If a band wants to release their music and allow it to be remixed or even resold, they can specify that. On the other hand, if a band wants to allow their music to be downloaded but not reused, they can specify that too.

15. Do you think respect for each other has a lot to do with the legal reuse etc of creative works? By this I mean should we make it a more two way process, the creation and sharing of creative works, as opposed to people only being out for themselves and to make as much money as they possibly can without thinking about the negative affect on society and a common intelligence.

    I think that there’s a disparity between creators and distributors. Most authors simply want their writing to reach as many people as possible and make a living from it. The publishing industry, on the other hand, is concerned purely with the money-making aspect: wide distribution is seen as a means to an end rather than an end in itself. The same applies in the music industry. The priority for most musicians is to get their music out to as many people as possible. But the music industry is geared around profit. There’s nothing wrong with that—all industry is based on making money. But it’s disingenuous to suggest that restrictive licensing protects the creators of cultural works. More often than not, draconian copyright enforcement protects existing industries that are built upon the works of others. These kind of industries often present a slightly schizophrenic adversarial attitude, treating their own customers as potential criminals. I don’t think that’s a healthy relationship. Suspicion breeds suspicion. Conversely, respect breeds respect.