Which of the above Creative Commons licensing option conflicts with the entire copyleft and free/libre license ecosystem? (Image by Aharon Varady, licensed CC-BY-SA 3.0 Unported)

The Jewish digital media community is young. Welcome to it! Those of you who are posting and innovating now are the trend-setters for the near-term. In addition, as long as the material you and your “students” produce remains relevant, the length of the copyright term will ensure that licensing restrictions placed on your data now last well beyond your lifetime, The community will learn, and I hope to convince you that the non-commercial (NC) term of use sets a dangerous precedent going forward.

The community is currently undergoing a transition from resources that are simply “free as in beer” (do not cost money to download and use) but place restrictions on what can be done with their content (examples here) to resources that recognize the educational and cultural value of remixing. The educational arguments in favor of remixability are remarkably similar to the philosophy of free culture, although they differ in focus. Our community, however, has not yet fully embraced the values of user freedom, and is subject to the confusion created by the choice offered in the spectrum of rights that Creative Commons licenses offer. The Creative Commons brand is recognized, but the differences in terms between the various licenses are not, leading to unhelpful suggestions like “use a Creative Commons license,” without specification of which one. While Creative Commons uses a logo to distinguish its free licenses from its non-free licenses, the brand name itself is still more recognizable than this logo.

One argument that I have heard promoting the use of the non-commercial term is the fear of a larger bogeyman. The identity of this bogeyman differs depending on who is making the argument. For content developers, the bogeyman is often a large publishing house. The new media entrepreneur worries that a larger publishing house will either take their free data and undercut their price or sell their free data without returning anything to its source.

This argument does not distinguish between two types of relationships with commercial entities: simple “commercial use” and “exploitation.” The free culture community answers the exploitation argument by proposing copyleft, also known as ShareAlike. Under copyleft licenses, any derived works of the original work must be released under the same terms as the original. What was once free remains free. The large publishing house bogeyman who publishes a copylefted work must allow the person who received the work to copy, modify, sell, and create derivative works of your work, just like any other user. Their intellectual improvements to the work can therefore be reincorporated into the original, diluting any advantage of the large publishing house’s version aside from the unique value added by their version (such as the fact that it’s a physical bound copy). In addition to the optional copyleft, all Creative Commons licenses except for the “Creative Commons Zero” (CC0) public domain declaration have anti-DRM clauses that prohibit adding digital rights/restrictions management that disallow users from exercising their rights under the license, so a third party is prevented from Tivo-izing your material.

Further, publishing houses that make use of your data can become your supporters. If your project provides them with useful data now, you will likely be able to provide them with useful data in the future, forming symbiotic relationships between publishers and content creators and aggregators.

Non-commercial use restrictions are particularly dangerous in combination with the ShareAlike term, as is the case in the Creative Commons Attribution-NonCommercial-ShareAlike (CC-BY-NC-SA) license. The reason is that the ShareAlike term ensures that derivative works are released under the same terms as the original. Overuse of the CC-BY-NC-SA license will result in two copyleft ghettos that cannot be mixed with each other: one that allows commercial use and one that does not. The existence of the non-commercial partially-free ghetto can only lead to duplication of effort and waste, both by commercial and non-commercial entities.

Don't make your copyleft, copywrong. License with a CC-BY-SA license instead of the CC-BY-NC-SA (Image by Aharon Varady, licensed CC-BY-SA 3.0 Unported.)

One proposed resolution to the varying interpretations of the NC term is for the creator to spell out what is expected. MIT OpenCourseWare is one such example of a well thought out model. However, even this liberal interpretation of the NC term blocks innovation and remixability by a large class of users for purposes which provide for the social good but involve an exchange of money beyond at-cost.

The real difference between MIT’s model and the model of many free resources in the Jewish community is that, it seems to me, MIT intends not to limit commercial use, but to reserve rights to commercial use. MIT is acting as a distributor for a collective of a relatively small number of copyright holders (the faculty) who themselves may have outside commercial interests in the material. Because only a few are involved and they are easily found, the NC license invites commercial users to obtain a separate licensing agreement for commercial publication. The NC term is creating a permission culture for commercial use of the work that is separate from the (semi-)free culture of its non-commercial use. Many content creators and aggregators in the Jewish community have no commercial interest in the work, which requires a different thought process from an entity that wants to reserve commercial rights.

A community-driven project that uses an NC term is in an even harder position. Not only is it content-incompatible with truly free resources, including Wikipedia, but it is also limited in what it in itself can do with derivative works of its own creation, once it has accepted a contribution from an outside contributor under the NC terms. For community-created works, there is no single author with whom to negotiate.

Further confusion is generated by the equation in many previous “free” resources of “non-profit” with “non-commercial.” With the advent of new business models, the lines between various entities with social purpose are increasingly blurred. This is the era of the “social enterprise.” While traditional non-profits rely on grants and donations to ensure their continued functioning, many social enterprises prefer to ensure their future sustainability by offering products on the market that help their social mission. A no-commercial use copyright term prevents these enterprises from transacting business with your data unless they negotiate separate terms as described above.

Whatever your form of legal incorporation (if any), it is hard to argue that you have envisioned 100% of the uses of your data from now until 70 years after your death. By blocking commercial use of materials, an entire group of social enterprises has been cut off from any use of your data, no matter how innovative.

For the reasons outlined above, I urge you to avoid licenses that restrict commercial use. If you are worried about exploitation, choose a license with a copyleft (ShareAlike) term.

1. Open, Discoverable and Accessible;
2. Remixable;
3. Meaningful and Relevant; and
4. Community Building.

In the secular free culture world, the language is somewhat different, and the difference in emphasis can be illuminating. There, another set of four freedoms have been defined as the bedrock of the movement. In order to be a free culture work, it must give its user:

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

Freedoms 1 and 2 roughly correspond to Russel’s point number 1. Freedoms 3 and 4 encompass point number 2.

What is perhaps most instructive is that the values of free culture are not defined with respect to the material itself, nor to its content. They are freedoms guaranteed to the user. Material being “open, discoverable, and accessible” is a first step. Simply putting it on the Internet and being indexed by search engines will satisfy this condition.

In the bargain of openness, content creators will have to choose to give up some exclusive rights. In exchange, the work gains a life of its own in the hands of the users, the educators and the students. In my (limited) experience of conversation with content providers, this seems to be the greatest barrier toward freeing educational works that are already made available.

Perhaps remixability is a harder sell to educators and educational content providers than openness because the advantages it provides are further from the originator. Content providers may argue that providing rights to copy material for “personal” or “educational” use satisfies their duty. However, the ability to make and distribute copies solely for limited use leads to dissemination of the material. It does not result in an active culture being developed out of it. It does not result in improvements to the original, or adaptations for differing circumstances from those the original creator envisioned. Even if those adaptations are made locally, they will ultimately be undisseminated, potentially resulting in duplication of labor, or worse, their loss to future creators and users. The absence of remixing rights builds a one-way community of consumers, instead of a multidirectional cooperative community of creators.

There is also the persistent fear of “misuse” of a work. If an author gives up exclusive control over remixes, how does he/she know that the results will still be ideologically compatible with the original? This is again a trade-off necessary for ensuring that users’ creativity can be exercised. Perceived damage to a creators’ reputation from an ideologically differing work can be mitigated by requiring that a modified work bear a notice that it was modified from its original version, and that no endorsement of the modified version by the original author is implied. Further, a web link to the original version may be included as part of the attribution. All Creative Commons free culture licenses (aside from CC0) bear these requirements. Overall, the benefits to the wider culture obtained from many creative minds working on the material outweigh the threats from “misuse.” The choice is between static read-only content and dynamic conversation among the user-creator partners.

Advocacy for creative works’ freedom represents a paradigm shift in thought among content creators: In a free culture, a premium is not placed on the material as-such or even the particular rights associated with the material. Instead, it is on the users’ freedom, and it is that freedom that is the prerequisite to large-scale creative engagement with educational material.

From the language of these license agreements, it is clear that the text Davka is providing is not free for end-users to distribute or to create derivative works. Section 4(a) of the EULA reads: “You may not use the texts in the software to publish materials for sale without express written permission from Davka Corporation. Preparation of these texts has entailed considerable effort and expense. They are not shareware, and should be used by no one other than the purchaser.”

In stark contrast, the texts that the Open Siddur is sharing may be distributed and re-distributed without our express written permission, for commercial and non-commercial, for educational and non-educational use. In short, our texts are FREE. We are making these texts free because we believe that these texts are the cultural legacy and inheritance of the Jewish people to create and innovate with in the publishing of new siddurim customized to an individual or groups spiritual practice. We have so much to share with each other, why should we  limit our culture vitality by shackling it to copyright?

There are other reasons why we would not use the digitized texts of contemporary siddurim. The most important reason besides their not being free, is that they do not clearly attribute the source of their digitized texts to the historical siddurim that they were presumably derived from. The Open Siddur Project aims to provide the text of all the nusḥaot of the siddur and their variations with full attribution of the sources for these texts.

The following is the text of the License Agreement (pdf) included in the packaging of the DavkaWriter Dimensions II CD:

Licensing Agreement

The files on this program are licensed to the purchaser on an “as-is” basis. While the publishers have made every effort to avoid errors, they will not be held responsible for any loss or damage, incidental or consequential, resulting directly or indirectly from the use of this program. In any case, the sole and total liability of the publishers shall not exceed the sum paid for the program by the purchaser. The texts on this CD may be used by the purchaser for personal or family use. If the purchaser is an institution, the texts may be used by that institution for its own needs. However, any use of the texts in the publication of materials for sale requires written permission from the Davka Corporation. Preparation of DavkaWriter Dimensions has entailed considerable effort and expense. It is not shareware, and therefore should not be used other than by the purchaser.

The following is the EULA included with the software installer and must be agreed to (via click-through) before the software allows itself to be installed.

END-USER LICENSE AGREEMENT FOR DAVKAWRITER DIMENSIONS

IMPORTANT-READ CAREFULLY: This End-User License Agreement (the “Agreement”) is a legal agreement between you, either an individual or a single entity, (the “Licensee”) and the Institute for Computers in Jewish Life, Davka Corporation, and David Kantrowitz (the “Publishers”) for the DavkaWriter Dimensions software product, which includes computer software, truetype font files, textual documents, associated media and printed materials, and “online” or electronic documentation (the “SOFTWARE”).

By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, promptly return the unused SOFTWARE to the place from which you obtained it for a full refund.

The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold.

1. GRANT OF LICENSE. This Agreement grants you the right to use one copy of the SOFTWARE on a single computer.

The SOFTWARE is in “use” on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer. However, installation on a network server for the sole purpose of internal distribution to one or more other computer(s) shall not constitute “use” for which a separate Agreement is required, provided you have a separate Agreement for each computer to which the SOFTWARE is distributed.

THE LICENSE IS LIMITED TO THE PROVISIONS OF THE REST OF THIS AGREEMENT, ESPECIALLY THOSE IN ITEM 4 BELOW.

2. UPGRADES. The SOFTWARE includes an upgrade to the DavkaWriter Platinum program, produced by Davka Corporation. This upgrade may be used ONLY by a licensed user of the DavkaWriter Platinum program. The DavkaWriter Platinum upgrade may NOT be separated from this SOFTWARE for use by another individual or entity. It may be used only in accordance with this Agreement.

3. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE are owned by Davka Corporation or its suppliers.

The SOFTWARE is protected by copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes or (b) install the SOFTWARE on a single computer provided you keep the original solely for backup or archival purposes. You may not copy the printed materials accompanying the SOFTWARE.

4. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

a. YOU MAY NOT USE THE TEXTS IN THE SOFTWARE TO PUBLISH MATERIALS FOR SALE WITHOUT EXPRESS WRITTEN PERMISSION FROM DAVKA CORPORATION. PREPARATION OF THESE TEXTS HAS ENTAILED CONSIDERABLE EFFORT AND EXPENSE. THEY ARE NOT SHAREWARE, AND SHOULD BE USED BY NO ONE OTHER THAN THE PURCHASER.

b. Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

c. No Separation of Components. The SOFTWARE is licensed as a single product and neither the software SOFTWAREs comprising the SOFTWARE or any UPDATE may be separated for use by more than one user at a time.

d. Rental. You may not rent, lease, or lend the SOFTWARE.

e. Software Transfer. You may permanently transfer all of your rights under this Agreement, provided that you retain no copies, you transfer all of the SOFTWARE (including all component parts, the media and printed materials, any upgrades, and this Agreement), and the recipient agrees to the terms of this Agreement. If the SOFTWARE is an upgrade, any transfer must include all prior versions of the SOFTWARE.
The SOFTWARE must be completely removed from your computer before transfering it to the recipient.

f. Termination. Without prejudice to any other rights, the Publishers may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the SOFTWARE.

5. EXCLUSION OF WARRANTIES.

The Publishers offer the SOFTWARE and the Licensee accepts it “AS IS”. The Publishers do not warrant the SOFTWARE will meet the Licensee’s requirements or will operate uninterrupted or error-free.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PUBLISHERS AND THEIR SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

CUSTOMER REMEDIES. The Publishers’ and their suppliers’ entire liability and the Licensee’s exclusive remedy shall be, at the Publishers’ option, either (a) return of the price paid by the Licensee, or (b) repair or replacement of SOFTWARE or hardware that is defective and which is returned to Davka Corporation with a copy of the Licensee’s receipt.
All Warranties are void if failure of the SOFTWARE or hardware has resulted from accident, abuse, or misapplication. Outside the United States, neither these remedies nor any product support services offered by Davka Corporation are available without proof of purchase from an authorized international source.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PUBLISHERS OR THEIR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE PUBLISHERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some states and jurisdictions do not allow the exclusion or limitation of certain implied warranties or the exclusion or limitation of liability for incidental or consequential damages, in which case and to the extent such exclusion or limitation is not allowed, some of the foregoing limitations and exclusions may not apply to the Licensee.
To the extent allowed by applicable law, implied warranties on the SOFTWARE and hardware, if any, are limited to ninety (90) days and one year, respectively.