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Charlie Angus brings copyright reform back into the spotlight

This post originally appeared at

NDP MP Charlie Angus
Credit: mgifford [CC BY-SA]

Last month, NDP MP (and former member of the Grievous Angels) Charlie Angus shook up Canada’s copyright debate by proposing two reforms. Angus was outspoken against the government’s last copyright bill, but he’s attracted criticism from all sides with this latest move. But that was basically his goal—more debate on copyright reform. For musicians and other copyright holders dealing with shifts in technology, this debate is a crucial one

Flexible Fair Dealing

Fair dealing permits the use of copyrighted works for certain purposes without permission. Currently, there are only five categories that qualify: research, private study, criticism, review, and news reporting. Noticeably absent are things like parody, sampling, time or format shifting, etc. However, the Supreme Court ruled that “[fair dealing] must not be interpreted restrictively” and introduced six factors to consider. Angus’ motion (M-105) would add the words “such as” to make the list of fair dealing categories illustrative rather than exhaustive, and it would put those six factors right into the act.

Flexible fair dealing has been called for by many groups, but others still characterize it as the “legalization of theft”. Nevermind that copyright infringement isn’t theft, but American law has long since had a similar principle in the doctrine of fair use—initially common law, but incorporated in the U.S. Copyright Act of 1976, much like Angus proposes for Canada. Fair dealing/use isn’t “theft,” but part of the copyright bargain.

Flexible fair dealing would help to future-proof copyright law by accommodating new technologies, practices, and forms of expression. Fair dealing isn’t free dealing either, since the factual tests of fairness must still be met, but the worry expressed by creator groups is that it will affect royalties—hence, Angus’ other proposal.

Expanding the Levy

Angus’ private members’ bill (Bill C-499) would expand the levy on blank media (such as CDs) to include potentially any “audio recording device,” defined as:

a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device

Yet, dedicated digital audio players are quickly being replaced by multi-purpose mobile computers. Should the levy apply to iPhones as well as iPods? This definition could potentially include Blackberry, Android and even laptop or desktop computers as well. This has attracted criticism from many, including Industry Minister Tony Clement and Canadian Heritage Minister James Moore, the cabinet ministers responsible for copyright. Beyond the wide spectrum of devices, what about the variety of works? What about movies, TV shows, electronic books, and other copyrighted works that are increasingly available on electronic devices?

This reform is short-sighted. The initial levy proposed for digital audio players in 2002 (struck down by the courts—hence a bill to make it legal) was $21/GB, which would leave a 120 GB iPod (less than $300 today) with a $2520 tax. How much would this levy be, and how long until that amount becomes absurd? Of course, the levies could be lowered (though, the CD levy has increased…), but imagine how quickly legislators would adapt, compared to the effect on consumers, innovation, culture and the music business in the meantime.

The “Nuance-Free” Zone

Angus criticizes the Tories for living in a “nuance-free zone,” either being “tough on crime” (Bill C-61) or “fighting against taxes” (Moore’s comments on Bill C-499). Yet, Angus has his own two-dimensional approach to copyright. He claims,

“There are only two possible options for protecting artistic property: either you lock down and sue or you compensate.”

Angus seems to conflate two separate issues—fair dealing and remuneration. It’s as if he thinks that the levy would justify—even pay for—more flexible fair dealing. Fair dealing isn’t something to be purchased; the Supreme Court affirms it as a “user’s right.” Likewise, the compensation problem would still exist even if flexible fair dealing was already around (see: the U.S. and fair use). This isn’t about crime/tax reduction, but it isn’t about “compensation for access” either. It’s about adapting copyright law to a world where copying is the norm.

Business models based on selling and restricting copies are struggling because the Internet is a copying machine, while those who are successful aren’t relying on copyright. Leveraging technology and consumer behaviour is an alternative to litigation, locks and levies, and effective copyright reform should enable that. This bill would just set up toll booths on computers. An iTax won’t solve anyone’s problems.

What’s Next?

Private members’ bills rarely become law, and the Tories plan to table new copyright legislation this Spring. The levy expansion has been rejected by Clement and Moore, though they haven’t taken sides on flexible fair dealing. Angus wanted to kick-start the next round of conversation, and that he did. Now it’s the government’s turn.

Read the comments at

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Taking a Free Culture Approach to Music

This post originally appeared on Roots Music Canada.

When I tell someone that all of my recordings are downloadable for free, I’m often asked, “but… how will you make money?

“Well,” I’ll respond, “since it doesn’t cost me anything, I may as well let people share and listen to my music so that they might connect with it and become interested in the associated scarcities—physical goods, the creation of new music, authenticity, personalization, live performances, etc… It makes more sense to charge for the scarce things than for the abundant. People need to hear and like music before they’re willing to buy, so I want people to download it.”

“Okay,” a musician might respond, “and you still have royalties and licensing.”

The fun begins: “Er… no, actually, my music is available royalty-free, even for commercial use.”


“Yep,” I’ll continue. “There are only two requirements: attribution, and that derivative works remain under the same licence. Otherwise, people are free to do what they want.”

At this point, the person I’m talking to is either incredibly curious, or convinced that I’m certifiably insane.

Why on earth would I do this?

Copyright Conundrum

Copyright is supposed to provide an incentive for authors to create because we, as a society, see a benefit in more works being created. However, it’s been radically expanded in both depth and breadth. Unlike the original 14-year terms, copyright now extends well beyond the author’s death; works used to enter the public domain within a few decades, but now it takes a few generations. Also, it used to be that copyright only regulated large corporations—you needed a printing press or a broadcast tower to trigger the law—but now it affects the everyday activities of anyone with a computer.

It’s become an astonishingly unprecedented restriction on our culture. Can you imagine if Shakespeare had to negotiate licensing agreements for each of the stories he repurposed? Yet, some seek to criminalize sharing and we must hire lawyers to get permission just to build on the culture around us. We must pay [PDF] for the privilege of dancing to copyrighted music. James Boyle, author of The Public Domain, said that “we are the first generation to deny our own culture to ourselves.” Society has become too focused on the unnatural notion of “intellectual property.”

20th-century culture was largely passive and read-only—a broadcast culture. But it’s wonderful and natural that we seek to reinterpret and build upon the culture we find around us, and it’s exciting that digital technology makes it easier. Creation is a fundamentally social act—not a solitary one—and its social dimension is something to be celebrated; it’s a beautiful expression of our humanity. I embrace an active culture with which we all have the freedom to engage… but current copyright law makes that illegal. James Boyle also points out that “no work created during your lifetime will, without conscious action by its creator, become available for you to build upon.”

As a creator, I’ve taken that conscious action to set my work free.

Free Culture

I use a Creative Commons (CC) Attribution-Share Alike (BY-SA) licence for all of my music and writing (including this post). CC BY-SA is a free licence—not free as in price, but free as in freedom. A free culture is the opposite of a permission culture: anyone has the freedom to use, share, remix, cover, rewrite or adapt my music.

Now, “remix” can be a funny word for songwriters. For some, the immediate word association is “techno,” but derivative works can include music videos, films, new songs, covers, as well as recordings that are “remixed” in the strict technical sense. I can also take freely licensed photos from Flickr to use as artwork for my songs. “Free culture” isn’t about quirky viral videos and the responses they inspire, but the broad spectrum of possibilities when freedom and collaboration can scale. Using a free licence opens up new potential for creating art and connecting with fans by removing the legal barriers to artistic freedom and widespread collaboration.

Commercial Use

Free licences allow commercial use: my music can be sold—by me, or anyone else—and I’ve waived the right to collect royalties. This was by far the biggest hurdle.

Most CC licences aren’t free. I initially used a Noncommercial (NC) licence with my band back in 2005—that seemed like a no-brainer at the time—but I later became convinced of the problems with NC restrictions. For example, NC restrictions limit derivative works to the realm of the hobbyist; once money enters the equation, NC licences still present a permission culture (hence their non-free status). Plus, NC restrictions rule out many basic uses you might want to allow: a blog with ads or a non-profit fundraiser could both qualify as commercial, and a remix of your own NC music by someone else is off-limits to you commercially. NC restrictions don’t allow a free culture to flourish… but, they do leave the door open for music licensing opportunities.

Giving up the prospect of royalties and licensing was hard. Ultimately, I decided that free culture and new media were more important for me. Copyright restrictions apply to bloggers and webcasters as well as radio stations, and SOCAN collects from large corporate radio, but also from kids’ gymnastic clubs and buskers. I’d rather focus on free culture and the Internet as a passion and competitive edge than be confined by a read-only, broadcast-based permission model. Royalties make as much sense on the Internet as they would in a conversation; it’s not broadcast, it’s a communications medium. I’ve decided to go the free culture route with the Internet in mind, even if it means no royalties from traditional mediums.


CC BY-SA is a “copyleft” licence—meaning, all rights reversed; it imposes a copyright restriction against restricting people: all derivative works must be released under the same licence. Someone is free to include my music in a video and sell it, but the derivative work must also be BY-SA, so I’d be able to profit from the derivative in the same way that people can profit from my original. It’s mutually beneficial. (If someone wanted to use my work without “sharing alike,” e.g. a TV show, with many other rights holders involved, that’s one case where traditional licensing is still an option.)

In terms of someone else just selling my stuff (e.g. CDs with my music), I’ve come to view that as an opportunity rather than a liability. If Sony wanted to distribute my music, with no cost or contract on my part… who am I to complain? They’d be helping me. CC BY-SA filmmaker, Nina Paley, argues that when others make money off your content, it’s free market research. “If any [competitors] do exceptionally well, I’ll know what merch I should be selling,” she says. Paley uses the Creator-Endorsed Mark to signal to consumers which distributors are actually sharing profits with her. Brad Sucks, a Canadian BY-SA musician, has also found ways to profit while allowing commercial use.

If you’re focused on innovating and monetizing real scarcities, allowing commercial use simply presents new opportunities.

Moving Forward

Licensing my music freely was a huge decision, and I’ve only scratched the surface of my reasoning here. I may have closed many doors, but I’m excited about the doors I’ve opened. This approach isn’t going to work for everyone, but with artists like Nina Paley and Brad Sucks paving the way, I’m committed to exploring how it can work for my music.

Read the comments on Roots Music Canada

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GSoC 2009 Wrap Up: Creative Commons Drupal Module

This post originally appeared on the CC Labs Blog

This past year was my last at the University of Toronto, making this summer my last chance to participate in the Google Summer of Code. I searched hard for a project and mentor organization that would suit my interests, and when I noticed that the Creative Commons Drupal module was in need of some developer love, I knew exactly what I wanted to spend my summer doing. With John Doig as my CC mentor, and Kevin Reynen (the module’s maintainer and initial author) as an unofficial Drupal mentor, I’ve been privileged to have spent the past few months updating and extending the module.

A couple years ago, development for Drupal 4.7 was begun, but it was never quite completed. CC Lite came to be the reliable choice for Drupal 6. However, CC Lite’s scope is limited — it allows you to attach a license to content in Drupal, but that’s about it. The main CC module’s vision is broader — to fully integrate CC technology with the Drupal platform — and I hope I’ve helped to realize that just a little.

Some of the module’s features:

  • it uses the CC API for license selection and information (so, for example, when new license versions are released, they become available on your Drupal site automatically)
  • you can set a site-wide default license/jurisdictoin, and user’s can set their own default license/jurisdiction
  • ccREL metadata is supported, output in RDFa (and, optionally, RDF/XML for legacy systems)
  • supports CC0, along with the 6 standard licenses and the Public Domain Certification tool
  • you can control which licenses and metadata fields are available to users
  • basic support for the Views API has been added (including a default /creativecommons view)
  • there’s a CC site search option

The module is still listed as a beta release, as some folks have been submitting bug fixes and patches over the past few weeks, though it’s quite usable. Special thanks to Turadg Aleahmad, who’s helped with a lot of the recent bug fixes towards the end of the GSoC term, and committed to being active in future development. If you’re into Drupal development, we could use help with testing, and any translations would be greatly appreciated too.

Right now, the focus is on getting to a stable release, but we’ve got lots of ideas for the future too. Thanks to John and Kevin for their support through the summer, and to Turadg for his recent help. I look forward to seeing the module put to good use!

Check it out!

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The ‘Creative’ Technology Behind The AP’s News Registry

This post originally appeared on Techdirt.

The Associated Press’ attempt to DRM the news is a bad idea for a variety of reasons, but its claims for the news registry’s capabilities seem pretty misguided, once you examine the technology behind it (the “magic DRM beans”). Ed Felten dug into the details of the registry’s microformat, hNews, which the AP announced a few weeks earlier, and here’s where it gets really interesting: the hNews rights field is based on the Creative Commons Rights Expression Language (ccREL).

If the AP thinks it’ll be able to build its “digital permissions framework” with Creative Commons technology, it’s in for a letdown.

I’m not sure if I’m “allowed” to quote the press release, but this is how it describes the news registry:

[It] will tag and track all AP content online to assure compliance with terms of use. The system will register key identifying information about each piece of content that AP distributes as well as the terms of use of that content, and employ a built-in beacon to notify AP about how the content is used[…]

The registry will employ a microformat… [that] will essentially encapsulate AP and member content in an informational “wrapper” that includes a digital permissions framework that lets publishers specify how their content is to be used online and which also supplies the critical information needed to track and monitor its usage.

The registry also will enable content owners and publishers to more effectively manage and control digital use of their content, by providing detailed metrics on content consumption, payment services and enforcement support. It will support a variety of payment models, including pay walls.

Microformats provide a syntax for expressing machine-readable licensing metadata in the HTML of a web page. ccREL was intentionally developed so that others could innovate freely on top of it, but the AP is trying to use it for something it’s simply not designed to do — “protect” and control. The Creative Commons has responded, explaining that ccREL is a tool for rights expression, not rights enforcement. (That doesn’t mean the AP isn’t allowed to try this, but it’s not going to work very well… it’s like trying to lock a door with posters.) Felten described the AP’s claims for the microformat as much ado about nothing, saying “the hNews spec bears little resemblance to AP’s claims about it,” and the Creative Commons clarification echoed the point:

Microformats and other web-based structured data, including ccREL, cannot track, monitor, or generally enforce anything. They’re labels, i.e. Post-It notes attached to a document, not locked boxes blocking access to the content.

There’s no “encapsulating” or “wrappers” — it’s just annotation.

This ecosystem of technology is about rights expression, not enforcement, and it’s more about telling people what you can do than what you can’t. There are tools built on top of Creative Commons technology, like FairShare, that “track and monitor” usage of content across the web, but these are search engine tools (similar to Google Alerts) rather than any sort of “built-in beacon.” Other tools, like Tynt’s Tracer (which Creative Commons blog uses), use javascript to append attribution and licensing information when you copy/paste, but that’s hardly a “wrapper.” These tools are based on the idea of granting permission, not requesting it. Participation is not enforced; anyone can remove or adjust metadata before reposting HTML, Tracer’s attribution is just plain text that can be changed (as I did when quoting the blog here), and FairShare can’t actually stop anyone from posting your content. These tools are based on a decentralized, permissive view of the web; they aren’t designed to create centralized registries and exert control.

If you re-read the AP’s description of the technology, it sounds a lot less scary, but a lot more hopeless. The tools are designed to convey further rights to users beyond what copyright allows, not further restrictions that limit user rights already granted by copyright law (e.g. fair use). This is a great way of tagging news articles, but it’s next to useless as a digital lock. They would be smart to employ this technology to make their content more usable and more valuable, but hoping it’s going to help them lock it down will only lead to disappointment.

Read the comments on Techdirt.

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Google Summer of Code: Moving Toward Version 1.0

My Google Summer of Code project is divided into two phases: updating and then upgrading the Creative Commons Drupal module. The module was largely abandoned as it was being developed Drupal 4.7.x, and now Drupal 6.x is the current series (with 7.x under development). The first phase is to update for Drupal 6.x and complete existing features; the second phase is to expand its functionality.

I’ve got the module running in Drupal 6.x, and now I’m chasing down bugs, cleaning up the user interface and polishing up existing features. Development snapshots are available on the project page, updated nightly. I’m pushing for a 6.x-1.0 release (or at least a beta) in the next couple weeks, ahead of midterm evaluations (July 6-13).

In Phase II, I’ll focus on new features for 6.x-2.0 — search integration, licence detection, language localization.

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Google Summer of Code: Creative Commons Drupal Module

A few weeks ago, I started my Google Summer of Code project with the Creative Commons. My proposal to update the CC Drupal module was accepted back in April, and over the last six weeks I’ve been getting my bearings. Kevin Reynen from Denver Open Media, the project’s maintainer, has given me CVS access and maintainer status at, and John Doig, my mentor, has been providing me with some guidance around design decisions so far. The Department of Computer Science at UofT has provided me with some great lab space for the summer along with other interns and students working on independent projects.

May 23 was the coding start date. I’ve been off to a slow start, but just made my first commits over the last few days. For now, I’m working on porting this module to the latest version of Drupal. There’s a CC Lite module that already exists. It’s functionality is basic, but I’m using that as a reference. In the next few weeks, I should have the module working and fairly easy to use (the UI needs some cleanup). Then, onto some cooler things: I’m going to be investigating some more advanced features, like automatic licence detection using liblicense or integration with other modules, like Flickr or Search. I’m not sure how many of these features will be feasible, but the goal is to at least lay the groundwork so that they can be implemented beyond this summer.

I plan to use the module myself for a few sites, and hopefully I’ll be able to continue development beyond the summer. More updates coming as more progress is made…

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Why Girl Talk Doesn’t Allow Commercial Use

Last July, I asked, why doesn’t Girl Talk allow commercial use? Girl Talk (Greg Gillis) makes commercial use of samples from all sorts of artists for his own music, yet he uses a Noncommercial Creative Commons license himself. Though, he points out that anyone else could use his material commercially, if it were fair use. That’s how he defends his own commercial use of samples from other artists. Still, it seems a bit ironic.

I had a chance to ask him the question directly in the Globe’s Download Decade Live Chat this Tuesday. I didn’t realize it was happening until the last minute and was rushing out the door, so my question was worded a bit awkwardly:

4:32 [Comment From Blaise Alleyne]
Greg, huge fan of your work, came to see you in Toronto in the fall. One question that’s bothered me though — why CC BY-NC-SA? [edit: it’s actually CC BY-NC] In other words, why forbid commercial use? I know you argue that fair use still allows commercial use (basis of your work), but I’m sure you’re well aware of all the legal ambiguity there. And, you’ve said that you don’t want your songs appearing as an endorsement in a commercial, but that sort of thing could happen anyways through collective licensing agreements. Also, the Share-Alike provision protects from exploitation much more than the Non-Commercial provision (i.e. if a company wants to use your song in a commercial, they’d have to release *their commercial* under the same license!)So… why not adopt a free culture approach entirely a

4:32 [Comment From Blaise Alleyne]
(opps, didn’t finish that comment…) So, why not fully adopt a free culture approach and allow commercial use of your music?

And his response:

4:35 GreggGillis: Basically, by going with CC BY-NC-SA, that means that someone can’t just take any one of my songs/albums/etc and just put it on a commercial or sell or a product with it without asking. But, people are protected under Fair Use, the same way I am protected under Fair Use. So I’m completely open to people remixing / recontextualizing my work and selling it if they believe it is transformative and does not negatively impact me.

I was disappointed at first because I thought this was his whole response; he was just restating the arguments I anticipated.

I’d heard him use the “put it in a commercial” response back in November at the Kool Haus, when he was trying to respond to the slightly outrageous “Is Girl Talk Killing Music?” piece by Marc Weisblott in Eye Weekly. Except, this was at the end of the show and he was shouting and everyone was drunk, dancing and excited, so he kept it brief. I wasn’t sure whether to attribute the ambiguity to the setting or to his understanding then. I think it’s clear he realizes that commercial use is about more than just commercials, but that just strikes me as a really bad way to talk about commercial use. Using “commercials” to explain commercial use is guaranteed to make a confusing topic even more confusing.

4:36 GreggGillis: In all honestly, I was open to going “completely free” with it. The label, who releases my music, Illegal Art, suggested going with the CC BY-NC-SA and I thought it was a good idea.

4:39 GreggGillis: If you are familiar with my work enough to sample it and make something new out of it, then I’m guessing you would most likely know that I would have no problem with people re-working my material in the same way I re-work other peoples’ material. The CC BY-NC-SA just seemed like a safe move. I’m approached by people asking to license songs pretty often. I didn’t want to make it a free for all.

It’s interesting that it was the label’s suggestion. I suspected that the NC choice had to do with retaining potential royalty streams, and he does mention licensing. Is NC the “safe move?” Sure. But I think the unintended restrictions and the ambiguity of the license make something like CC BY-SA a better choice in the long run.

The argument that people would need his permission for potentially objectionable uses doesn’t really make sense when you consider the ways in which that could happen anyways though collective licensing agreements. A company could easily use a Girl Talk track to sell a product, if all they needed were performance rights (so, maybe not in a commercial, but at an event).

But I do not believe he’s being hypocritical. I had read the Eye Weekly article in print, and was quite annoyed when they said the NC license “prohibits anyone from pulling a Girl Talk on Gillis,” but I just noticed that the web article links those words to my Techdirt post! Argh… Gillis would never take legal action against someone else for remixing, and it’s not actually hypocrisy when you consider fair use — just a bit odd and disappointing. I think Gillis and other artists would be better off removing the barriers to commercial use, but I don’t think he’s a hypocrite.

To be even more clear… I think Girl Talk is making great music, doing great work promoting the art of sampling, helping to legitimize remix as art in the minds of many and challenging restrictive copyright provisions which make this sort of art form impossible if each sample has to be negotiated individually, not to mention the business model experimentation with his last album. I’m just picking on him for the non-commercial restriction and making an observation that even an artist like Girl Talk seems to have some attachment to a permission culture. I think we can do better.

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#Twuneup Covers Edition

Last week, I attended the February #Twuneup — Covers Edition. #Twuneup is basically a monthly listening party (this was the second) run by a group of people in the Toronto Twitter community who share a love of music. There’s also lots of music sharing that happens on Twitter.

I found out about it too late to get a spot at the first one (space is limited), but this time I was quick to sign up. I was happy to learn that live performances were encouraged, so I busted out the T-Qualizer (perfect event) and played my cover of The Patient (Tool):

There were a couple other fun live performances too!

I also met lots of cool people. I first noticed @photojunkie last summer and I’d met him at #hohoTO, but the rest were new faces. @modernmod and @nicopop were the other organizers. I had a chance to meet @johnpapa, @alkerton, @rlangdon, @3rdparty, @pageby_paige, @zachaysan and lots of other cool people.

I had a great chat with @leilaboujnane (from Idée) and she gave me a Creative Commons sticker, before she even knew that I’m a CC BY-SA artist! I was going to put the sticker on my guitar case, but then I realized it had a clear background (black-on-black wouldn’t work to well). So… I put it on my guitar!

CC sticker on guitar

Rannie (@photojunkie) has photos on his site and Bev (@bev_w) has a Flickr set.
(Photo by bevw)

Lots of fun! I hope to make it back in March.

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Why free culture?

The other day, I wrote a (ridiculously long) post announcing my commitment to free culture, and more specifically, to free music. I didn’t expect anyone to read the entire thing, but my friend, John, not only read it but also responded to it on Facebook. I’m not sure what his privacy settings are like on that note, so as I reply I will quote him often.

John, I really appreciate your response. I didn’t interpret as “pompous” in any way, and I hope the same will be true for my response. 😉 I really appreciate the opportunity to hammer out these points in more detail, the opportunity to have a real discussion and debate about them. It’s nice to be able to address these questions in a conversation rather than just on my own.

(0) Statement of Intent

My original post was largely addressed to people already familiar with the free software movement. Long as it was, I assumed for the most part that readers would already accept the idea of free software and argued for extending those freedoms to cultural works. I’ll try to reply to John’s concerns now, along with a few other commons concerns, without assuming such prerequisite knowledge.

Still, this is part of an on-going conversation and is not intended to be complete. I hope to develop a more complete and concise summary on my wiki over time.


(NOTE: these links might not work on Facebook)

  1. Freedom — the ethical argument
    1. The Four Freedoms
    2. A Moral Imperative
  2. Economics
    1. Definitions
    2. Approaching zero
    3. The Economics of Abundance
    4. Let’s talk about music
      1. Selling music recordings
      2. Live Performances
      3. Session Work
      4. Other Merchandise
      5. Kevin Fox – an example
  3. Other
    1. Communism
    2. Exploitation
      1. The T-Shirt Example
    3. Nine Inch Nails — Ghosts
    4. Making a direct profit from your product
    5. Digital Audio Players
    6. Shakespeare
  4. Conclusion

(1) Freedom — the ethical argument

(1.i) The Four Freedoms

The Definition of Free Cultural Works describes the four freedoms as follows:

  • the freedom to use the work and enjoy the benefits of using it [freedom 0]
  • the freedom to study the work and to apply knowledge acquired from it [freedom 1]
  • the freedom to make and redistribute copies, in whole or in part, of the information or expression [freedom 2]
  • the freedom to make changes and improvements, and to distribute derivative works [freedom 3]

This is generalized from the free software definition.

(1.i.0) Freedom 0: the freedom to use

This is the most fundamental freedom, to use a work that you posses. For software, this means “the freedom to run the program for any purpose.” For music, this means the freedom to listen to that music.

Digital Restrictions Management (DRM) is a huge attack on this freedom. With music, for example, you are unable to listen to music as you please if DRM dictates which devices or which software is permitted to playback your files, or even how many times or how often you can listen to them. Even though all DRM is circumventable, some countries (like the United States) legally forbid you to do so. Anti-circumvention measures mean that no one has any fair use rights, because DRM technology is law.

John hasn’t directly expressed any troubles with this freedom. This, I think, is the easiest one to accept. However, simple as it is, it’s often not respected. DRM is a technical measure that attacks this freedom, and legal barriers exist in the gray areas such as making multiple copies of a copyrighted item for personal use (e.g. backup, use on multiple devices, etc.). Fair dealing provisions in copyright law may be able to protect this freedom, but most large proponents of copyright law are also large opponents of fair use (e.g. RIAA/CRIA).

(1.i.1) Freedom 1: the freedom to study

For software, this is extremely relevant, described as “the freedom to study how the program works, and adapt it to your needs” (from the Free Software Definition). This includes access to the source code. In the Definition of Free Cultural Works, “the license may not, for example, restrict ‘reverse engineering’.” This is the freedom to open the hood of your car and make modifications.

For cultural works, the part of this freedom which may be more relevant is the freedom to “apply knowledge” acquired from studying the work. I’m not quite sure exactly what this means yet, but it seems reasonable. If there are objections, we can research and discuss further.

(( I do plan to release the “source” for my music (ie. multi-tracks), I think, even though it’s not required by the CC BY-SA license. The Barenaked Ladies did this for a few of their tracks when they were encouraging fan remixes. I think it’s a cool idea. ))

(1.i.2) Freedom 2: the freedom to make and redistribute copies

First, and perhaps this is the root of many of the rest of my questions, I continue to take issue with the freedom to redistribute software, music or any other such item at no cost. Thus I take issue with Myers’ point that he takes as self-evident [about] freedom of distribution[.] I believe that this promotes a kind of Randian piracy of creative effort. [- John]

This is fundamental. If you consider physical goods, there are no limitations on redistribution. If you buy something, it’s yours and you are free to do with it what you please, which includes sharing it with a friend, reselling it or giving it away. We don’t have this freedom with digital goods, such as software or music. The reason, I would argue, is that with digital goods, one needs not relinquish their own copy to share it with a friend. It’s actually copying, not transferring ownership.

But, what’s wrong with that?

I think digital technology is a blessing and not a curse. This is an advantage of digital technology. Sure, it will shake up business models that are based on scarcity if goods are no longer scarce, but businesses come and go with technology. We shouldn’t limit the usefulness of technology in order to protect out-dated business models. That sort of protectionism prohibits progress and does not have the best interests of society in mind. We don’t need to prop up the buggy-makers just because automobiles are making them obsolete.

It’s a strange idea for things to be owned by their creators rather than their owners. Imagine what implications that would have on all your possessions, none of which would actually be yours anymore.

John, correct me if I’m wrong, but I think your problem here is with the economic implications of such a freedom. I would argue that the economic considerations are secondary to the ethical ones, and that there are economic models that work.

Let’s look at the ethical side. Benjamin Mako Hill quotes Eben Moglen when addressing the issue:

The great moral question of the twenty-first century is: If all knowledge, all culture, all art, all useful information, can be costlessly given to everyone at the same price that it is given to anyone — if everyone can have everything, everywhere, all the time, why is it ever moral to exclude anyone from anything?

If you could make lamb chops in endless numbers by the mere pressing of a button, there would be no moral argument for hunger ever, anywhere.

I see no system of moral philosophy generated by the economy of the past that could evolve a principle to explain the moral legitimacy of denial in the presence of infinite profusion.

Mako Hill continues,

With all its warts, copyright was a system that filled an important role at a particular time and in the context of particular technological and social systems around the production and and consumption of a particular intellectual good: eighteenth century printed books.

The only reason freedom two was ever restricted was that, in a certain specific context, it made some sense to do so. In that context, the average person couldn’t practically redistribute works anyways; few people owned a printing press. Now that anyone can be a distributor, the freedom is much more important and the trade-off of restricting it as an economic incentive for creation is no longer a fair one.

What about before copyright? How would works of Aristotle had been preserved if scribes needed to worry about licensing copies? How would such ideas spread and give rise to academic and intellectual debate? The advantage of the natural and free flow of ideas vastly outweighs any perceived advantages of giving creators an artificial monopoly over their works. The freedom to share something with your neighbour is more important than the creators ability to become rich. Plus, with the proper economic perspective, allowing the exercise of this freedom can help you make money.

I’m going to leave this as rather abstract and philosophical for now, but we can get into specific practical examples of the exercise of this freedom as the conversation continues.

As an auxiliary argument, there is absolutely no way that people will stop making use of technology that is so useful. The RIAA will never stamp out Napster spin-offs. DRM will never work, it is defective by design and unbelievably flawed in such basic technical ways. To believe that something infinite (a digital good) and in demand can be made truly scarce is foolish.

(1.i.3) Freedom 3: derivatives

If you accept freedom two, I think freedom three follows fairly easily. If permitted to distribute verbatim copies, why not permit the propagation of improvements or spin-offs as well? I addressed many of the main concerns in my original post. In short, derivatives can include modifications (a musical remixes, changes to the software code) or other uses as well (e.g. syncing music and video, like the way my high school Student Council used music in our videos). The derivatives are one of the most important parts of free culture, since it’s only natural for us to reuse and build on existing ideas.

I won’t go into depth here.

(1.ii) A Moral Imperative

I think a system in which the creator of something we legimately call a “tool” such as software, as it is explicitly called by many proponents of free software, should be able to directly monetize this tool but not be forced to offer it for free with no personal gain on the basis of some social moral. [- John]

But Rob Myers writes,

Free Culture is an ethical matter. As with Free Software, economic concerns are secondary… the economic harm [free culture] may cause for current business models is both acceptable as a moral consequence and can be offset by business models that are already being proven.

If you accept the ethical arguments, but hold economic concerns above them, that is a straightforward — and, I believe, misguided — example of the ends justifying the means. The ability to make a profit from one’s work is a good ends, as is encouraging the production of cultural works, but if the means involves violating people’s freedom, it’s unethical. Furthermore, it’s based on misguided thinking because cultural works can and will be produced, and profit can and will be made, without implementing a means that disrespects freedom. (That’s demonstrated by history, by current examples and by the economic arguments.)

To limit any of the above freedoms is unwise, unnecessary and unethical.

(2) Economics

(2.i) Definitions

the amount of money needed to purchase something; a product’s monetary value.
The property or aggregate properties of a thing by which it is rendered useful or desirable, or the degree of such property or sum of properties; worth; excellence; utility; importance. [1913 Webster]

(2.ii) Approaching zero

I read Techdirt a lot, which you can tell if you ever click through my links. Mike Masnick from Techdirt writes extensively about the economics of abundance.

We usually think of the economics of scarcity — the allocation of scarce resources based on supply and demand. Economic models based on scarcity break down when the supply is abundant. There is an inverse relationship between price and supply; as supply increases, price decreases (assuming constant demand). Thus, as supply approaches infinity, price approaches zero. Digital goods are infinitely abundant, therefore it’s natural and inevitable that their price will approach zero in a competitive market.

Note that value and price are two separate things. Value, as defined above, is much more than price; price is merely a subset of value — monetary value.

Mike Masnick writes,

[Price and value] are not the same. Value drives demand — but price is set by the intersection of demand and supply. If supply is abundant, it’s not going to matter how valuable your product is, price will get pushed towards zero.

We can see the price of digital audio files approach zero, the price of news articles approaching zero, etc. Free (as in price) music does not conflict with the free (as in freedom) market, basic economics still applies to infinite goods.

(2.iii) The Economics of Abundance

Many people think that economic models break down when a zero enters the equation. (“You can’t compete with free [as in price]” or “giving your content away isn’t rational”, etc.) The economics of abundance teach us how to make more economic sense of zero. Business models based on the economics of abundance recognize abundant goods and use them to add value (especially monetary value) to scarce goods. Basic supply and demand still applies to scarce goods, but abundant goods can be leveraged to increase that demand.

Kevin Kelly writes about eight “generatives” (things which can’t be copied) that are “better than free [as in price]:” immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage, findability. You can find examples by clicking through the links or reading some of my posts on generatives. His suggestions aren’t exhaustive, but they’re a good starting point. (And yes, the word “generative” is silly.)

The economics of abundance is about monetizing the complements, or, more specifically, monetizing the scarce complements. In recognizing abundance when you posses it, you can capitalize on it, for example, as a promotional tool for your scarce goods.

The alternative is artificial scarcity, to pretend that your abundant goods are scarce and attempt to artificially inhibit supply. DRM is an example of this. This usually tramples on people’s freedoms and neglects much of the value of the goods you posses (i.e. their digital value). Also, it usually fails. How has DRM worked for the music industry?

(2.iv) Let’s talk about music

The language is very ambiguous here, so I’m going to be careful with my terms.

Music — an ordering of sounds, possibly words — has immense intrinsic value. Music is valued in and of itself. Music in this sense (e.g. a song, a composition) is also scarce. In order to get a new song, someone must write it. Though, a composition is not scarce in the same sense that physical goods are scarce because it is an idea and ideas are naturally free-flowing; when someone hears a tune, they might possess it without taking it away from someone else. From an economic perspective, however, a composition is scarce.

Digital audio files — a format of musical recordings — are infinite because they are digital. Whenever I say “music is an infinite good,” the “good” I am referring to is that digital musical recording, not the composition (i.e. the idea) itself.

Also, digital audio files are infinite, but CDs are scarce insofar as they’re physical. Thus, “music” can refer to either the composition (e.g. a song), a digital recording (e.g. an OGG file) or an embodied recording (e.g. CD). I’ll try to be clear.

Music is extremely valuable, though copies of digital audio files are easily made and therefore not as valuable, especially in a monetary sense (i.e. price). As an infinite good, it is natural and inevitable that the price of musical recordings will approach zero. This does not mean that artists can’t sell music recordings. This does mean that artists will want to sell other things alongside their recordings.

(2.iv.a) Selling music recordings

As an independent BY-SA artist, I still expect to make a significant amount of money from selling my music recordings (whenever I have something to sell). Recent examples have shown that people will still buy music they like when it’s available at no cost. People still paid for Radiohead’s In Rainbows despite the fact they could get it at no cost and people still paid for Nine Inch Nail’s Ghosts despite the fact that it was available on file sharing networks at no cost. People will still support the artists they like with their wallets (in generative-speak, this is patronage).

In both cases, artists added value to their offerings to encourage fans to pay. Radiohead offered the deluxe box set (generative-speak: embodiment), and Nine Inch Nails offered several packages which included added value (high quality audio files, artwork, CDs, DVDs, signed packages, etc.).

A CD is also a physical good and is therefore scarce. Most artists make money from selling CDs at concerts, especially independent artists. The more popular an artist becomes, the higher the demand for their CDs. In Rainbows has been selling on disc despite the fact that it is widely available online.

(2.iv.b) Live performances

For me, live performances have been my main source of (musical) income over the past year. This “product” is the least copyable of all. Even if all your music, all your artwork and t-shirt designs are released under free (as in freedom) licenses, no one can reuse your person in a live performance. Concert tickets are an important complement to music.

Songwriters who aren’t performers obviously wouldn’t be able to take advantage of this though.

(2.iv.c) Session work

Most of my musical activity in the last year has been on violin, partially because my band is dead (that’s another story), partially because I’m in demand as a violinist. There aren’t many violinists who are also folk/rock/songwriter savvy and I’ve been trying to leverage my skills recently by playing with other artists. This overlaps with live performances, but I can (and hope to) also offer my services on violin for work in a recording studio.

(2.iv.d) Other Merchandise

Bands make a surprising amount of money from other merchandise, such as t-shirts and posters. I don’t think it’s an epicycle (which John had mentioned) because a) it’s already an important part of life as an independent artist, and b) it’s in addition to (not in place of) selling music.

The point here is more of a “make sure you sell the other stuff too” if you’re music is widely available at no cost. This certainly applies to free culture artists, but also to musicians in general since all popular music tends to be available at no cost online.

(2.iv.e) Kevin Fox – an example

Kevin Fox is one of my musical heroes. He’s a singer/songwriter, guitarist and cellist. As a cellist in the music business, he’s in high demand. He’s played on some of Robyn’s recordings (as session work) and I spotted him in a recent Jann Arden music video. I’ve seem him play in the Andy Kim band (“Sugar, Sugar”) and he’s been the musical director for Shaye. His main product is himself.

For me, I hope to have a similar component to my music career as a violinist and multi-instrumentalist.

Also, as a side note, he makes money from making music, not from music that he’s already made. In what other careers does one make money from work they’ve done in the past? Usually, people make money from working. I don’t think it’s a tragedy if musicians do the same thing.

(3) Other

(3.i) Communism

John often brings up communism when talking about free software/culture, though often with some disclaimers about it being a bit of a tangent, but I thought I’d take a second to address the issue.

I don’t understand how free software or free culture is at all communist.

The systems of copyright and patents impose government sanctioned and enforced monopolies on ideas. Free software and free culture involves less government control, more free market, more personal freedom and allows for more freedom of expression.

Moreover, free software benefits many corporations. Companies like Google and Facebook wouldn’t exist without free software, they wouldn’t have had the ability to rapidly scale their software without licensing fees (freedom two) or adapt it to their particular needs (freedom one).

Just because free software/culture encourages collaboration and a sense of community doesn’t mean that it’s communist.

(3.ii) Exploitation

John’s uneasiness about freedom two seems to be largely based on a concern that creators will be exploited if they don’t have copyright laws to protect them. I believe this is a common myth that ought to be debunked.

First of all, copyright doesn’t prevent exploitation. I would argue that, in its current state, it encourages in many ways. How many musicians actually own the rights to their music (example), authors to their books? Copyright laws don’t necessarily protect the “rights” of creators if those rights are assigned to corporations. How many times have you heard about musicians in dispute with their labels? There are authors who can’t sell or distribute their own novels anymore because of publishing deals, even if the publisher refuses to print and sell more copies after they cease to become available. I’ve met musicians who aren’t allowed to sell me their own CDs because of their record deals. Copyright laws encourage the exploitation of artists by corporations.

Secondly, the purpose of copyright was not to prevent exploitation. The purpose of copyright was to promote the progress of science and useful arts (in the words used in the American Constitution, for example). Copyright doesn’t grant creators artificial monopolies to “protect their rights” or because they “deserve” such monopolies, but only because such monopolies were believed to be potentially useful, in so far as they promoted the creation of more works by offering a financial incentive.

Society traded away its rights in exchange for more cultural works. The deal may have been fair a few centuries ago, when the average person would hardly be able to exercise freedom two, but copyright laws are ill-suited for the digital age when we exercise such a freedom constantly.

(3.ii.a) The T-Shirt Example

Let’s say I decide to sell t-shirts (humour me, I’m not exactly that far yet, lol).

Take your example of monetizing music through t-shirts or other paraphenalia. Under the fullest extent of such a free licensing system, is not the artwork on the t-shirts also free for commercialization, and if not, why is it exempt. [- John]

I would release any artwork under a CC BY-SA license as well.

If it is free for commercialization, isn’t the person to benefit the most from the production of the t-shirts going to be the company that can produce and distribute them in the cheapest way, which could be, for example, the GAP rather than Blaise’s private records. [- John]

First of all, that’s a very narrow view of benefit. It only considers short-term financial benefit. Sure, there could be a lot of potential for short-term benefit for other companies, but the long-term benefit of all the advertising and publicity that sort of thing would generate can’t be neglected. If people are buying and wearing my t-shirts faster than I can make them, if the demand is strong enough that some big company wants to start selling and distributing them, by all means. They are entitled to make a profit from their work, and yes, it would compete with one of my side products, but it would serve to supplement and support my main product — me, the musician. T-shirts and other such merchandise may be a great source of supplementary income, but that merchandise has indirect value insofar as it acts as a promotional tool for other scarce goods, such as concert tickets or CDs.

That’s just focusing on freedom two. What if the GAP exercised freedom three? What if they took my shirt and modified it to make it “better” and started selling the modified version? That’s why I use copyleft licenses — the GNU GPL for software and now a CC BY-SA License for cultural works. Any derivatives or redistributed copies are required to maintain the same freedoms. If someone improved on my design, I would be free to sell the improved design on my own as well.

Also, there are ways to be competitive. Even though there’s value to others selling my shirts, I’d make more money if I sold them myself. Other people can’t create autographed shirts, for example. If the shirts are so popular that some major corporation is distributing them, that would presumably make an autographed copy that much more valuable. In generative-speak, that’s authenticity.

Many people buy band merchandise at concerts. If I’m selling my own “Blaise’s private records” t-shirts at my concerts, that’s an advantage I have over third-party competition. In generative-speak, that’s immediacy.

Patronage is also important. Kevin Kelly writes,

It is my belief that audiences WANT to pay creators. Fans like to reward artists, musicians, authors and the like with the tokens of their appreciation, because it allows them to connect. But they will only pay if it is very easy to do, a reasonable amount, and they feel certain the money will directly benefit the creators.

Radiohead is the high-profile recent example here. But, as this relates to my t-shirts example, if I make my t-shirts available at a reasonable cost, easy to buy and I make it clear that the money will be directly benefiting my work, I would feel confident that I could compete with third parties.

And, again, insofar as third parties are successful, they are successful at promoting me.

What about examining this in a more positive light? Releasing t-shirt art under a free license allows for fan sharing. Fans could make their own t-shirts as well, without having to break the law. The positive effects that type of thing brings about with respect to building a community (in this case, a fan base) serves to counter any immediate economic setbacks from third party competition. There are benefits as well.

Increased competition may be a side effect of a free license, but the above examples show how this side effect is manageable and I believe any negative effects (e.g. increased competition) are outweighed by the positive effects (e.g. fan sharing, improvements on the design) and the ethical considerations (respecting freedom and the positive effects that can have on a community).

(3.iii) Nine Inch Nails — Ghosts

I found Reznor’s experiment interesting – giving away 9 of the 36 tracks and charging a nominal fee for the rest. In fact I think it’s brilliant, including the seeding of torrents. But I think it doesn’t work well as an example of progress towards free music because it must be conceded that a sizable (though unmeasurable) portion of the 1.6 million dollars made was made from people wanting the other 27 tracks that were not freely published. One can argue that the people paying $5 are just donating because they could easily have gotten the same thing from some file sharing site online but I don’t think that’s entirely true. I don’t think I’m the only person that still feels that file-shared music is unethical and does not consider that a legitimate means of obtaining a work. [- John]

John, you missed a key point about the release. It’s legally impossible for people to steal his music; it’s released under a Creative Commons License. Although it’s a non-free license (BY-NC-SA — doesn’t allow commercial use), music file sharing is explicitly permitted in the license, as are derivative works.

That brings up another common misconception about free software/culture though, that you have to give everything away. Reznor made the first nine tracks available at no cost on his site and spread them on bit torrent himself. He leveraged that popularity as a promotion tool, and then requested a bit of money for the remaining tracks if you wanted them through the official channel (another example of patronage).

Even more importantly, Ghosts II-IV (the tracks he charged for) have only contributed to a portion of his success. His 2500 limited edited ultra-deluxe packages sold out in under two days and, costing $300 each, those alone grossed $750,000 USD. People weren’t buying that because they just wanted Ghosts II-IV, they were buying it because they wanted “all the high quality downloads, two CDs, a data DVD, a Blu-ray high def DVD and assorted extras, all in a nice package signed by Reznor.” It wasn’t just the less-available tracks that were causing people to reach into their wallets. True fans wanted the extras and Trent delivered, using the infinite goods as a promotional tool for the more expensive scarce goods (in generative-speak, capitalizing on patronage, embodiment and authenticity).

(3.iv) Making a direct profit from your product

I think a system in which the creator of something we legimately call a “tool” such as software, as it is explicitly called by many proponents of free software, should be able to directly monetize this tool but not be forced to offer it for free with no personal gain on the basis of some social moral. [- John]

They can: they can sell their software. No developer is forced to give anything away at no cost. However, once you give it to someone else, to control what they do with it and to attempt to control what everyone in the world does with it is an abuse of power and disrespects people’s basic freedom of use.

If freedom two is asserted, then economic laws will eventually bring the price to zero, since the supply is infinite. As I see it, there are two options:

  1. Control your users, even though it is unethical
  2. Look at other economic models, such as monetizing the product’s complement (which is not at all exclusive to free software – proprietary software companies do this too), to make money without doing something unethical

It sounds radical, but I’ve heard RMS (Stallman) say that if there is no ethical way to develop software, then it would be better if no one developed software at all. Fortunately, there is an ethical way to do it. It just may require a shift in economic strategies.

It will always be possible to make some money from your product directly. Red Hat can still sell it’s enterprise GNU/Linux distribution, and I can still sell my CDs. But insofar as these products are digital and abundant, and insofar as copyright restrictions violate people’s freedom of use and freedom of speech, it does not make economic or ethical sense to impose barriers and expect to make your entire living directly from the products.

(3.v) Digital Audio Players

The first thing I thought of when you talked about using derivative products to make money off music which will ultimately approach a price of zero because it has infinite supply was iPods, and how Steve Jobs and company are surely laughing all the way to the bank about DRM-free music, and have been since day one, knowing full well that statistically no one had 20gb of purchased cd music to fill the devices with, but they did have 20gb of file-shared music and that’s how they cashed in. [- John]

I will never buy another iPod (unless I buy it for the hardware and run Rockbox…), but let’s talk Apple for a second. Apple’s 160 GB iPod Classic has an advertised capacity of 40,000 songs. Even at the relatively low iTunes price of a dollar a song, that would mean someone would have to spend $40,000 to fill such an iPod (unless Apple implements the rumoured music bundle). Technology is making music — digital audio files, that is — an essentially infinite good. We have huge, portable storage, and it’s trivial to copy a file. Whether or not this is a problem depends on freedom two.

The revenue from those 100 million plus iPods sold has, however, not been seen nor so much as sniffed by any of the bands whose music populates them. [- John]

Why should bands deserve any money from digital audio player sales? That seems like another popular myth, the type of statement that no one would ever apply equally to any other industry. One industry doesn’t deserve money because it makes another more valuable or profitable. Do hardware developers owe software developers money because the demand for hardware goes up when useful software is created? Do telecommunication companies owe Internet companies money since they’ve made a business around the value such web companies provide (e.g. no one would want an Internet connection if there wasn’t value online, but Rogers doesn’t pay Google royalties for delivering its site to users)? Do home decor businesses owe construction companies money for building the houses that they decorate? Do popcorn makers owe Hollywood for promoting the consumption of their product?

Sure, I think it would be beneficial to both parties to maintain a good relationship, but technology companies don’t owe artists any money. That’s just propping up out-dated business models.

( Shakespeare

But the more interesting point is what would Hunt say about this. (For those who bothered to read this other than Blaise, Mr. John Hunt is a counter-cultural English teacher from our high school.) He would say that if music is truly in infinite supply as was suggested, then it must literally have no artistic value, since “there can only be one Beethoven”. [- John]

Funny you should mention Mr. Hunt. Shakespeare (Mr. Hunt’s ultimate hero, for those other than John) is one of the standard examples of how innovation happens without artificial monopolies, and how the best innovation can be choked by it. Shakespeare borrowed so many of his ideas from others, story lines for example. The value was in the innovation, not invention. He told those stories in a much more compelling way than anyone had before or has since. But, were they subject to artificial government sanctioned monopolies, they could have been largely off limits for reuse.

Shakespeare — author of some of the greatest cultural works of all time — lived in a world without copyright. If copyright had existed, he might not have been able to write some of the plays he did. He’s a testament to the free flow of ideas for cultural works.

I’ve explained the difference between price and value above, and compositions versus digital recordings. So, I think you misinterpret me to say “there can only be one Beethoven.” I’m not suggesting otherwise, just that, say, once someone makes a digital recording of a composition by Beethoven, we can have an infinite supply of that recording.

(4) Conclusion

John, your main issue was with freedom two. If you’re saying, “freedom two is unethical insofar as it removes the possibility for the author of a work to profit from it,” I respond that freedom two is therefore not unethical at all. And thus, it’s a freedom that ought to be respected.

I believe copyright is ill-suited for the digital age. It may have once been appropriate, but in the current climate it does more harm than good. It attacks people’s freedom of use and freedom of speech. Free software/culture is a moral imperative and economic considerations are secondary. However, economic considerations show us that a) free [as in price, at least] culture is inevitable and b) free [as in freedom] culture can make economic sense. Business models exist that already have been or are being proven.

There is no excuse but ignorance or fear for taking the unethical route.

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My commitment to free music, free culture

Over the past few months, I have been researching and reflecting on free culture and what it means for my music. Free culture is about freedom, not price. Today, the vast majority of music (and other art) is not free due to a combination of technology, law and economics.

The same is true of software. In the mid-1980s, Richard Stallman began the free software movement, introducing a definition of software freedom and pioneering the concept of copyleft. Over the past 25 years or so, the movement has grown and has been shaking up the software world.

People have naturally broadened the question and asked about works other than software. In the same way that certain restrictions on software violate a user’s freedom, what sorts of restrictions on cultural works are unethical? Or, when asked in a positive sense, what sorts of freedoms are essential for cultural works?

These are the sorts of questions I’ve been asking myself lately and I think I’ve found an answer.


In October 2005, my band Fishkiss recorded our live demo, which is currently available under a Creative Commons Music Sharing License (BY-NC-ND), though initially we allowed derivatives. In 2007, I began releasing my own music under the same license.

In February 2007, after seeing one too many “the wow is now” ads for Windows Vista, I found myself a GNU/Linux book + DVD in an Indigo store. By April, Ubuntu 6.06 was my main operating system and by July I had rid my laptop of Windows. A few weeks before, I had heard Richard Stallman speak on copyright at the University of Toronto, Mississauga Campus, and quite promptly became a member of the Free Software Foundation (FSF).

In January 2008, I began a thread in the FSF’s Associate Member Forum on the topic of music file sharing and free culture, searching for a definition and a standard of freedom. This was the start of the recent chain of events, which this blog post continues and ultimately concludes.

Stallman’s Categories

In Stallman’s talk on copyright in July 2007, he spoke of three categories of works:

  • functional works;
  • works of opinion; and
  • aesthetic or entertaining works.

He argued that the four (software) freedoms should apply to all functional works, to all things which we “use”. The freedom to modify, on the other hand, he said did not apply to works of opinion.

Stallman seemed somewhat confused regarding the third category. He asserted the freedom to redistribute exact copies for non-commercial purposes (explicitly noting peer-to-peer music file sharing), was conflicted on the freedom to create derivative works, and believed that this was the one category where copyright was useful — for a limited time (ie. < 15 years) — to restrict commercial use as an incentive for creation. Regarding economics and music, he suggested that a system to voluntarily contribute money to artists (without the middleman) would be at least as effective in providing financial support to artists as the existing fragmented and crumbling business models. (Think Radiohead.)

After the talk, I wanted to ask him how allowing non-commercial music file sharing while forbidding commercial redistribution makes sense when the non-commercial distribution essentially competes with the commercial. He was hungry and I was shy and — though I waited around at the end — I never got to ask the question.

(( The basic ideas he expressed in the talk are more or less expressed here, two-thirds down the page under the heading “Three new models of copyright.” ))

My Journey

Stallman’s talk left me with some pretty clear ideas about software freedom, but I was quite conflicted on the matter of cultural works. Should the freedom to “remix” be protected? Is there any value in copyright? Does it still, in any limited way, promote the original purpose of creating an incentive for the creation of cultural works? Commercial redistribution didn’t seem to be a necessary freedom, but where is the line between non-commercial and commercial when they compete with each other? How is that distinction relevant or enforceable?

I returned to the Creative Commons. What other licenses did they have? Too many, and there is no standard of freedom among them. I was not going to find an answer there.

Freedom Defined

Then, during one of my late nights of web browsing, I stumbled upon it: The Definition of Free Cultural Works. This was exactly what I had been searching for. Not only is there a definition of free cultural works, but also a list of licenses which qualify.

But the definition was a challenge for me. All the freedoms that applied to software were defined as necessary. This means allowing commercial uses as well. I investigated the Creative Commons licenses that met the definition and found that using them would mean waiving my ability to collect royalties.

What about Stallman’s categories? Do I really need to allow commercial use and forgo the collection of royalties? Isn’t there some value in limited copyright restrictions? I sought this definition, but it had presented me with a further challenge — acceptance.

I posted on the FSF forum again.

I’m still stuck on the issue of remixes and commercial use, in general.

The definition of free cultural works from the Freedom Defined project requires that the works can be reused for commercial purposes.

I’ve yet to hear a good argument as to why that should be the case for works of art. For software, it’s a different matter because software is a tool, not a piece of art. You don’t *use* art for commercial purposes, but rather you sell it.

For example, if I were to release music under either Creative Commons licenses that meet the definition of free cultural works, I would waive my ability to collect royalties for radio airplay. Isn’t that sort of thing one of the (few) legitimate uses of copyright to promote the creation of works by offering a financial incentive?

And articles like this make me question the remix…

So confused…

Seeking an Expert

I needed expert advice and I found it. A couple links, posted by mattl, to two of Rob Myers’ blog posts on the subject put me in touch with the first real arguments for commercial freedoms of cultural works I had encountered. One of them was recent, so I left a (lengthy and poorly-written) comment detailing my remaining hangups in hope of receiving some guidance. Basically, I asked, “why should I use a free license?”

Thank you, Rob Myers. The first of two articles in response to my question. I was convinced a few paragraphs in… I can’t wait for the second!

The Persuasion

Part of the reason why I was so easily convinced is that I wanted to be. Also… because I was reading his wiki in the meantime. Inspired, I created a page on my own wiki to consolidate my thinking. I’ll attempt a summary here.

The Three Categories

Rob argues, “the categories that Stallman describes are guided by the principle of freedom of use… As freedom of use is the basic freedom for software, freedom of speech is the basic freedom for culture and cultural works… In expression or entertainment, freedom of use peters out but freedom of speech remains.” Also, he brings up the point that there isn’t a neat breakdown of works into such categories.

I would add that, regarding the freedom to modify works of opinion, copyright may not be a necessary or appropriate means of protecting an author’s reputation. After all, that was never its original purpose. That’s what libel and defamation laws are for, and social pressures are often even enough to enforce integrity.

This was the concern expressed regarding derivative aesthetic works as well. What if the derivatives were essentially “vandalism”? Well, the purpose of copyright was never about this sort of protection anyways. Freedom of speech ought to reign, first and foremost. If there’s a issue (e.g. defamation), copyright is an inappropriate means through which to deal with it. It is too often abused with respect to limiting free speech.

Goodbye, categories.


An ethic of freedom of speech rather than freedom of use applies to cultural works, and the economic harm this may cause for current business models is both acceptable as a moral consequence and can be offset by business models that are already being proven. – Rob Myers

Rob convinced me of some major problems with the non-commercial clause in this post and some of the comments helped convince me of the benefits of allowing commercial use. For example, with a non-commercial restriction, if someone were to remix one of my songs, they wouldn’t be able to benefit financially from their work. Furthermore, I wouldn’t be able to benefit financially from that work either because of the licensing restriction! Second, as noted before, non-commercial distribution competes with commercial distribution (e.g. peer-to-peer file sharing). The non-commercial restriction doesn’t protect the profit of the artist, but rather prevents anyone else from profiting in a sort of misery-loves-company, if-I-can’t-profit-neither-can-you type way. Allowing commercial use can also protect an artist from losing control of their work when signing with a label. I’ve met songwriters who can’t sell me their own CDs directly because of their contracts.

But what about the question of royalties? Well, as with free software, if this is an ethical issue then economic questions must be secondary. What other economic models could replace the royalty setup?

Rob Myers listed a bunch of ways and Techdirt is always covering new business models for musicians.

My attention was also drawn to an old post from Joel Spolksy where he says that “smart companies try to commoditize their products’ complements” because “all else being equal, demand for a product increases when the prices of its complements decrease.” Bringing in ideas from the Techdirt series on the economics of abundance, if the supply is infinite (as is the case with digital products), then the price of the product will approach zero, therefore increasing the demand for its complement. The economics of abundance teach us to use the infinite goods to add value to complementary scarce goods.

In other words, if music is the product and it is infinite because it is digital, the price will naturally approach zero. (A free culture license embraces this, allowing redistribution and reuse.) The more popular the music becomes, the higher the demand for its complements — concert tickets, t-shirts, CDs, deluxe packages, etc.

So, there are other economic models that make a lot of sense. Take a look at the $1.6 million Reznor has grossed in the past week.

Goodbye, royalties. There are other ways to make money from music while respecting freedom.


I still believe the original purpose of copyright might still be served with a very limited — in length and scope — application of its restrictions, but the baggage that comes along with that is not worth it.

I am now a Creative Commons BY-SA artist. Check it out.

In the same way that Stallman made the ethics of free software clear to me, Rob Myers has helped me to form my thoughts on free cultural works. A passage from George Orwell’s book, 1984, comes to mind:

The book fascinated him, or more exactly it reassured him. In a sense it told him nothing that was new, but that was part of the attraction. It said what he would have said, if it had been possible for him to set his scattered thoughts in order. It was the product of a mind similar to his own, but enormously more powerful, more systematic, less fear-ridden. The best books, he perceived, are those that tell you what you know already.

Book or blog, Rob Myers, you are my new hero.

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