Why The NC Permission Culture Simply Doesn’t Work

In “Free Culture” Lawrence Lessig described a perfect storm of law, technology, media mergers and divergent social norms that had broken the tradition of free culture. Now Lessig has the solution to this problem: a NonCommercial economy of sharing and reputation building.

This seems like an elegant solution. Individuals can create and share and build on work freely without being unfairly exploited commercially. When they have built their reputation to the point where they can monetize their work, they have still retained their commercial rights. And the ability to withhold a propritary licence gives creators much needed protection for their reputation. If value, then right. If right, then value.

Sharing without creators having to accept harm to their earning ability or their good name in exchange for freedom. Who could disagree with such a perfect system? You would have to be a free content (sic) zealot, or even a Debian free software fanatic who doesn’t want artists to make any money because making money is wrong. Possibly even a communalist (see Wikipedia for a definition of the last term).

On the surface these are powerful memes to argue against. But if we scratch off the shiny gloss of this argument we find that they are ethically and economically broken.

Creators who reserve a right of creative fiat may see that same right exercised against them, and they will appreciate it much less in those circumstances. This is a permission culture, not a free culture.

Creators who release their work at no cost under an NC licence will have to compete with their own work available gratis if they ever try to monetize the same work. This makes NC at least as effective at destroying earning ability as other CC licences allegedly are while giving less freedom and returning less value as well.

And creators who use work made by others will have to pay for that use if they wish to charge for their own work. Which may make producing documentaries, to take one of Lessig’s own canonical examples, impossible to meet the costs of unless the artist has already entered into proprietary culture. This is an economic permission culture, but still a permission culture.

But at least nobody will get ripped off. No starving artists will be exploited to make middlemen multimillionaires without giving so much as a digital tip to the people who make their fortune possible. This is Web 2.0, everybody shares. And the people who enable the sharing are peers with the creators…

…Right up to the moment where one of the survivors of the first web bubble or an even older media corporation buys those enablers out. Then all that NC work makes somebody millions, and it isn’t the people who made the NC work.

Pleading for NC in the name of artists is, as ever, pleading for middlemen. Creative Commons’s NC licence very carefully redefines US law to define peer to peer sharing as noncommercial. You don’t even have to get bought out, you can charge people for using pipes or pods rather than selling them a CD. Given a choice between having to pay artists who might resonate with the public enough to recover their advance or being able to guarantee making much more money just by paying off a couple of hackers, media corporation executives are more than capable of spotting which option offers maximum return to their shareholders.

So as well as its other problems NC protects against a business model that was dying when NC was being drafted but delivers its users up wholesale to the profiteers of the Web 2.0 bubble without any need for compensation. Opposing this NonCommercial Permission culture is not simple-minded idealism, it is basic economics.

Posted in Free Culture
7 comments on “Why The NC Permission Culture Simply Doesn’t Work
  1. You’re getting there. :)
    NC is simply classic copyright with an “I won’t sue you for promoting me, but I won’t pay you, and I won’t let you get paid”.
    And with SA “You can mess around with my work, but you’ll have to get back to me the moment any money is involved”.
    You’ve missed out a key flaw of NC that everyone misses out (apart from me). When the value chain starts getting swung from the other end (when the audience wants to pay the artist to produce art), an NC derivative artist can’t accept money from their audience for the art they produce, and then pay a share of that money to any artists upstream – they have to tell their audience to hold their money for a few months so they can get in touch with all the upstream artists to get their permission.
    If I was a conspiracy theorist I’d suggest the NC ghetto was all part of the IP maximalists’ great plan.
    Using NC and self-publishing is the compromise an idiot would make when deciding whether to dive with expensive scuba gear or go cheap with flippers and a snorkel. They strap on air tanks and weight belt, and dispense with breathing apparatus, flippers and snorkel. And then they wonder why they sink like a stone and drown never to be seen again.
    In other words, either court publishers or court your audience – don’t try to get the best of both worlds, or try to keep the old world as a fallback option in case the new world should fail to deliver.
    Do not piss off potential publishers by eroding their monopoly, whilst at the same time driving off commercial promoters and denying the use of your art to other artists who might actually want to make a living from their work and procure further material from you.
    It’s the old way, or the new way.
    Copyright or copyleft.
    There is no viable compromise, no pix’n'mix CC license that might be more appropriately tailored.

  2. Rob Myers says:

    And with SA “You can mess around with my work, but you'll have to get back to me the moment any money is involved”.
    NC and SA? SA on its own doesn’t have this effect…
    You've missed out a key flaw of NC that everyone misses out (apart from me). When the value chain starts getting swung from the other end (when the audience wants to pay the artist to produce art), an NC derivative artist can't accept money from their audience for the art they produce, and then pay a share of that money to any artists upstream – they have to tell their audience to hold their money for a few months so they can get in touch with all the upstream artists to get their permission.
    That’s an interesting one. I usually use a related scenario: upstream artists cannot charge for downstream derivatives of their work. Yours is a better head-on challenge to Lessig’s new ethics.
    Do not piss off potential publishers by eroding their monopoly, whilst at the same time driving off commercial promoters and denying the use of your art to other artists who might actually want to make a living from their work and procure further material from you.
    The “protection until you win pop idol” model.

  3. Yup, SA+NC.
    CC-SA is the closest the CC have to a license that lives up to the name ‘creative commons’.
    I wish they’d rewrite the Attribution clause though!
    It should be ‘No Misattribution’ for chrissakes.
    Quite a significant difference. One’s a burden, one isn’t.
    This was learnt yonks ago with the BSD license.
    We also have inalienable moral rights (where they’re upheld) running alongside that should make attribution clauses in copyright licenses redundant.
    I read on a blog recently that everyone was quaking in their boots that moral rights would wreck CC licenses. Duh. Some people… :-\

  4. I’ve just re-read your NC scenario.
    Thanks. I hadn’t thought of that one – that an SA-NC artist who quite likes a derivative can’t sell it. Hoist by one’s own petard! ;-)
    I can imagine the poor artist who’d really like to include a great remix of their work they found on a demo track, but the deriving artist has gone on sabbatical in Tibet (or is demanding a high price).
    Another issue is if there’s a complex interplay of derivation/provenance/combination before a resulting work is so good an A&R man wants to release it. Unfortunately, everyone along the chain/birdsnest discounted ever making any money because of the NC clause and hardly anyone can be tracked down to obtain permission for commercial use. Doh!

  5. MJR/slef says:

    Nice pun on “doesn’t work”. As you may recall, I noted the NC licences are “creative flowerbeds” rather than “creative commons” back in May 2005!

  6. dave crossland says:

    We shoud make a CC style ‘viral’ propaganda video for this point, and start trolling around with it :-)

  7. dave says:

    http://www.mises.org/TRTS.htm is maybe good inspiration for this?

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