DISCUSSION ON

oer-community oer-community@athabascau.ca

RE: NON-COMMERCIAL RESTRICTION ON CREATIVE COMMONS

On 2012-11-26 6:18 PM, rory wrote:

Stephen
See my comments below in response.
(All disagreements are respectful!)

All the best.
Rory

On 12-11-26 1:44 PM, Stephen Downes wrote:

Hiya all,

STEPHEN>> Without extending this into a full-blown debate, as I have already written at length about this elsewhere: - licenses that allow commercial use are less free than those that do not, because they allow commercial entities to charge fees for access, to lock them behind digital locks, and to append conditions that prohibit their reuse

RORY>> I disagree. One can also lock NC licensed material behind a digital lock. Or  print it out. Then others can't use it. So, NC is no less free than any other open licence. In either case, the only work that is "locked" is the specific instance of the work that has been taken by the user. All other instances are still open. If it is available elsewhere online, then locking it up at any one site is not relevant.

STEPHEN>>- works licensed with a Non-commercial clause are fully and equally open educational resources, and are in many cases the only OERs actually accessible to people (because the content allowing commercial use tends to have costs associated with it)

RORY>> I disagree. If a work is NC it is NOT open to institutions that  charge tuition for their courses. In fact no institutions can use NC material, unless they (and the law) sees their tuition fees as being non-commercial, although some interpret non profit as being NC. This differs from jurisdiction to jurisdiction. To clarify, because I may misunderstand you, could you please supply an example  or examples of a CC work that is locked down and that I cannot access.. A site may be locked down but if the material is freely available elsewhere then the content is NOT locked down.

STEPHEN>>- the supposition that works that cost money can be 'free' is a trick of language, a fallacy that fools contributors into sharing for commercial use content they intended to make available to the world without charge

RORY>>> I disagree: I can charge for openly licensed material and I can give it for free at the same time. For example, IRRODL is fully freely available and it is also on some databases that charge for the service. So it can cost money and it is free at the same time. Also, AUPress which uses the NC licence allows free downloads AND sells the books in different formats. AUPress didn't trick the authors.

STEPHEN>>- the lobby very loudly making the case for commercial-friendly licenses and recommending that NC content be shunned consists almost entirely of commercial publishers and related interests seeking to make money off (no-longer) 'free' content.

RORY>>> I disagree. I am non-commercial as is the Commonwealth of Learning, the OER Foundation, the OCWC, the Creative Commons etc. etc. etc. We are loudly making the case for shunning NC licensing. So it is a fallacy to state that this group is made up of "entirely commercial publishers".  We are not their "related interest" either. Nor are we seeking to make money.

STEPHEN>>- The problem with this is the Flat World publications or the OERu assessment scenario - content deposited with the intent that it be available without cost is converted into a commercial product. It's not free if you can't access it. Content is different from software, it can be locked (or 'enclosed') in ways free software cannot, without violating the license.

RORY>>> I disagree. What CC material have they locked down that we cannot access. I'll believe it when I see it. Their site may be locked, but the content can be accessed from elsewhere. One example would be a school that downloads CC content to its server which is closed or locked down. You cannot access the content there so it is as equally locked as at the Flat Earth site. The NC license does not prevent this. For example, FlatWorld has books under an NC license and they still "lock it down". They even have some books under NC and SA and still "lock it down".  For profits may be more aggressive in promoting the books, but anyone can take a copy and make it available online for free. The community needs to be more aggressive in doing this.

STEPHEN>>-In sum, this discussion would be better conducted without further debated about which open license 'is best' and especially with fervent declarations in favour of commercial-friendly licensing. The suggestion that the free sharing of non-commercial content is not 'practical' is not Stallman at his best, and is refuted by the experiences of millions in the field.

RORY>> I disagree. This is an important discussion that needs to be open. The NC license is NOT open. It is restricted. No one can legally enclose a CC -BY  work. Adding an NC restriction to the content does not make it more open. It makes it less open.

STEPHEN’S REPLY (and my responses)

To follow up on some points made by Rory:

STEPHEN>>Content (under whatever license) is 'enclosed' when it is contained behind a barrier such as proprietary encryption, a digital lock or a paywall. Enclosure does not restrict the content itself, but restricts access to the content; access is granted (typically under some other name) only via some concession, such as payment, or provision of personal information.
.

RORY>>> I cannot agree. If one specific instance of the content is behind a barrier, this does not restrict access to the content. With an open licence it can be accessed elsewhere or anywhere freely even if 10 companies or institutions have it behind their barriers.   NC is a barrier.

STEPHEN>>To my understanding, all of Flat World's content will now be enclosed behind a paywall. OERu assessments enclose assessment content. This mailing list (OER-community) encloses content behind a subscription requirement (I can't even link to discussions in my newsletter; all non-subscribers see is a barrier).

RORY>>> That is my understanding also. It is ALL also under an NC licence, so please explain how an NC licence protects content from being behind a barrier??
From what I tested, I found it impossible to find the content outside of this or other barriers. So, you argument about barriers holds, but it has nothing to do with having or not having an NC licence.  Moreover, because of the CC licence there is nothing to prevent anyone from copying the content and putting it on an open site.

STEPHEN>>Enclosure is an important concept because it leads to 'conversion'. The process of conversion is one where what was once a resource that could be freely accessed is (for all practical purposes) accessible only through a barrier of some sort; in other words, the content is free, but has been effectively completely enclosed. This is what happened (for example) to many UseNet newsgroups. It almost happened to Wikipedia, and would have happened, has Google not intervened.

RORY>>> For all practical purposes the content can never be completely enclosed if it has an open licence. Anyone can copy and distribute it. If it has an NC licence, this prevents some people from distributing it. Note that Flatworld content has a NC SA licence so anyone (except a commercial entity) can not only copy the work but can also copy their additions and improvement to the work.

STEPHEN>> Having said that, let me be clear how perspective plays a significant role in the free / not-free debate:
- from the perspective of someone who already has the content, the content is 'not free' if there are limitations on the use of that content, including the right to sell it

RORY>> We agree!

STEPHEN>>- from the perspective of someone who does not already have the content, the content is 'not free' if there are barriers preventing the person from accessing the content (note that the putative assertion that the content 'could be made free somewhere' does not constitute a removal of the all-too-practical barrier

RORY>>Barriers? Like not having an internet connexion? So it is not free with or without an NC restrictions??
Barriers? Like the Flatworld firewall? That has an NC restriction? That effectively prevents other commercial entities from removing that barrier?

STEPHEN>>It is not to me surprising that the people with wealth - namely those in U.S. universities - could view 'free' from the perspective of those who have the content. But I speak from the perspective of one who does not have access to the content. And my argument, in a nutshell, is that the second perspective is just as valid as the first (even though the second perspective cannot afford lobbiests).

RORY>>> Which CC licenced content do you not have access to? Example?
I would argue that the second perspective has more value, but it has nothing to do with having a NC restriction. In PRACTICE the CC-BY content is freely available online and it is the NC restricted content that isn't. I think you have it backwards or perhaps I am missing the examples that you are referring to. Please give me some CC-BY examples behind firewalls that are not freely available so that I can understand your practical position.

STEPHEN>>Content behind barriers - for example, content that is being sold - is 'not free'. This perspective matters. For 99 percent of the world, it's the only perspective that matters.

RORY>>> Instances of content behind barriers is not free. If it is also available elsewhere then it is free. If (like the NC restricted material) is behind a firewall and not available elsewhere and can't be copied by other companies then it is NOT free.

AND AGAIN

Stephen,
And furthermore . . .
(:-)
Rory

On 12-11-27 6:08 AM, Stephen Downes wrote:

Hiya all,
Again, not to pursue the argument regarding the One True License beyond reason in the present forum...
. . . .{omitted by Rory- not pertinent to this response}

STEPHEN>>I have no objection to the mechanism whereby OERu converts OERs it receives for free from volunteers into revenues for universities. What I object to is the ongoing campaign by OERu staff to depict non-commercial OERs as 'non-free' and to lobby for their exclusion from the definition of 'free educational resources'. I wish to pursue my support of OERs in such a way that does not impose significant cost on students. To this date, the best and only mechanism for ensuring their use of OERs remains genuinely free is through the use of the NC license.

RORY>>> Not true. NC does NOT prevent commercialization. It encourages it. Private companies want the exclusive right to distribute so they license it  directly from the author a la Flatworld.  NC promotes and supports commercialization. People in Canada have free access to water. Others bottle it and people pay for it. The fact that some companies choose to sell it does not make water unfree. Granny can bottle her free water and sell it. Others can take the free water and use it gratis.

STEPHEN>>As an aside: there is always in this context a reference to the 'original' version of open source licensing, and of course Stallman's four freedoms. I would like to point out that open source licenses existed before GPL, and open content licenses existed before Creative Commons. Until the intervention of staff from large U.S. universities (Berkeley-Stanford-MIT-Harvard) these licenses required that distribution be unencumbered with cost. It is only with the intervention of staff from these institutions that 'free' comes to mean 'commercial'.

RORY>>> CC-BY does not mean commercial. Nor does free water  (or free air for that matter - yes some are selling it). This is a problem among educational researchers who tie themselves down to a principle. The forget that BOTH are possible and can exist side by side. For example because the OERu is pursuing one model  some think that this in some way denigrates or restricts other models that may or may not be more open. BOTH or even ALL are possible.

STEPHEN>> Again: people may attach licenses allowing commerical use to their work if they wish. I have no objection to this. But such people should cease and desist their ongoing campaign to have works that are non-commercial in intent, and free in distribution, classified as 'not free'. Content that cannot be enclosed within a paywall, and cannot be distributed with commercial encumbrances attached, is just as free - indeed, more free - than so-called 'free' commercial content.

RORY>>> Or, you may attach an NC license so that you can further restrict  the sale of your free content to one and only one company with an NC licence. Why does Flatworld insist on the NC licence for their content??
I, for one, shall continue to characterise NC licensed material as not-free - simply because content with this restriction is NOT FREE. Water is free you can use if as you like or you can sell it. NC restricted content limits the selling option to one person.