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.