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.

In Pirkei Avot,^[1] Rabi Yehoshua ben Levi teaches that the 48th quality of the 48 qualities defining excellent students is they should correctly attribute the source of their knowledge.^[2] Failing to do so threatens to “dissolve the world.” In the rabbinic understanding of cosmogony, creation itself is the product of exegesis. In Genesis Rabbah, the Creator looked into the Torah to create the world. The process of exegesis, requires attribution, and so without correct attribution by the Creator to the Torah, the product of the exegesis — the universe — dissolves. The importance of attribution doesn’t get any more tachlis (fundamental) than that.

Rabi Yehoshua ben Levi proceeds to exemplify this teaching by attributing the 48th quality to Queen Esther who in the second chapter of the Scroll of Esther, verse 21, foils the coup de tat of Bightan and Teresh — by relaying warning of the coup to King Aḥashverosh in the name of Mordeḥai. Had Mordeḥai not been correctly credited with notifying the king of the murderous plot, he would not have received his belated thanks in chapter 6,^[3] and Haman would not have endured the embarrassment that presages his downfall. A long chain of events connects the seemingly insignificant action of Queen Esther to the salvation of the Jewish people. The implicit lesson is that our everyday actions matter. The explicit message is that it behooves us to act correctly, especially in regards to attribution of credit.

In the world of academic scholarship, correct attribution is a fundamental ethic. Ignoring it would quickly tear apart the tower of intellect upon which the babel of human knowledge ascends to heaven. The need for correct attribution is of course, no less in new and creative Jewish works. Whether you’re making a translation in a source sheet for a lecture or shir, designing a Hebrew font, crafting your very own siddur, or developing software that helps others craft their own siddur, it behooves you to correctly attribute any sources included in your work or from which your work derives.

The need for correct attribution is widespread and that is one important reason why a requirement for correct attribution is now enshrined in a set of legally binding licenses which creators use to share their work in the world and over the Internet. The significance of these licenses is that by enshrining language assuring attribution, they help to promote sharing. And sharing is of fundamental importance to receiving Torah. As the Gerrer Rebbe Yehudah Aryeh Leib Alter, teaches in his Sfas Emes in his d’var torah on Parshat Terumah:

The Midrash Tanḥuma quotes: “I have given you good lekaḥ (teaching)” (Proverbs 4:2). [Lekaḥ can also refer to something acquired by purchase.] It then offers a parable of two merchants, one who has silk and the other peppers. Once they exchange their goods, each is again deprived of that which the other has. But if there are two scholars, one who has mastered the Order of Seeds and the other who knows the Order of Festivals, once they teach each other, each has both orders.

The point is that each one of Israel has a particular portion within Torah, yet it is also Torah that joins all our souls together. That is why Torah is called “perfect, restoring the soul” (Psalms 19:8). We become one through the power of Torah; it is “an inheritance of the assembly of Yaakov” (Deuteronomy 33:4). We receive from one another the distinctive viewpoint that belongs to each of us.^[4]

This is an important lesson to learn. However, when a new work is created, the law doesn’t assume that work was intended for sharing with attribution. Instead, that work is immediately protected as private property — not only for the lifetime of the creator, but also for 70 years after their death^[5] — כֹּל זְכוּיוֺת שוֺמְרוֺת, Kol zchuyot shomrot, all rights reserved — to reproduce, distribute, and create derivative works based on it are forbidden, without the explicit written consent of the creator. As stated before here at the Open Siddur Project, this might make sense for creators of new works and music, but it hardly makes sense for cultural projects with communal objectives which rely heavily and assert their authority on the authenticity of works in the Public Domain. The teaching and practice of Judaism is one such communal project. The promise of the Open Siddur Project relies on our sharing creative works and access to the vast corpus of work that we’ve inherited from our creative ancestors. That is why we so heavily depend and advocate for the adoption of open source, free/libre, and copyleft^[6] licenses — so that creative work, protected by default under Copyright law, can nevertheless be shared by creators who give their explicit permission to others to adopt, adapt, study, and attribute their work in new works that are similarly shared and distributed.

To help creators of new works navigate the panoply of free/libre, open source, and copyleft licenses, I made a decision tree flowchart as an image map with clickable links to respective licenses and relevant articles. The tree was inspired by a decision tree by Terry Hancock, which accompanied his article, “Choosing and Using Free Licenses for Software, Hardware, and Aesthetic works.”^[7] Readers of this article are recommended to read Hancock’s follow-up essay, “Confusion and Complexity: High time to prune the Creative Commons licenses?“

• How might the Jewish community increase Jewish literacy as more religious and educational resources become digitized in e-formats, and thus become more easily disseminated and accessed?
• Will prayer become more individualized as siddurs (prayer books) become available to everyone and can be carried without adding any extra bulk to a briefcase or book bag?
• Will learning of Jewish texts attract new students as Torah and Talmud become available in new formats?
• Will Jewish life become less expensive by saving on the purchase of books at religious schools and day schools?
• How might synagogues and JCCs build relationships beyond their walls as sermons, newsletters and blog entries are sent to the palm of constituents’ hands?
• Will all Jews need a handheld device, like new students at some universities, in order to fully participate in all the community has to offer?

How else might the Jewish world change as it enters the digital realm? What’s your organization or community doing to interact in the digital world?

Here at the Open Siddur Project, we see the platform we’re developing as, yes, a means for improved dissemination and access — especially for illuminating the historical diversity of Judaism’s spiritual traditions enshrined in Jewish liturgy. But this is not our raison d’etre. There are already many who are sharing texts of the siddur online. What is novel for us is the opportunity for individuals and groups to collaborate with one another: creating, remixing, and sharing art and text, each a seed-like contribution grown in the fecund mulch of our common cultural and spiritual heritage. Speaking for myself, the question of whether Jews will be davvening (praying) from e-books in the future is thus something of a distraction from what is much more interesting — how digitization of the ingredients of the siddur and collaborative publishing platforms like the Open Siddur might empower a sense of personal ownership in the craft and creation of useful and beautiful tools for engaging in spiritual relationships.

Need it be argued that print media will ever be made entirely obsolete for the Am haSefer, or People of the Book? We are, after all, a people who have enshrined in our laws the careful reproduction of our seminal texts by a capable scribe using quill and ink on animal skin parchment. I love Star Trek and hate paper goods derived from felled trees, so I’m hopeful that in the future we will at least be davvening from siddurim made from 100% recycled bamboo and hemp based sustainable paper goods. iPhone possessing Jews, serious about the fulfillment of their thrice daily t’fillah obligations, are already davvening from siddur apps. Yet, I caution against any premise that assumes digital media supplanting print media, in a sort of self-justifying march of technological progress.  Considering that conventions for sabbath observance are well fixed in the Jewish tradition, one could hardly expect print formats to disappear so long as there are Jews observing traditional sabbath laws. Saying this, I am certain that digitization will improve print resources used by Jews at any point during the week, let alone Internet or cloud-based resources — with one important caveat. We need to think seriously about how this material is licensed.

Efraim provided an insight into this issue with his economic argument for free primary data. I’d like to add to what Efraim and I began to advocate publicly on the Jewish Tech list, here in a criticism of Bar Ilan’s Responsa Project’s licensing of newly digitized historic works that are otherwise free and in the Public Domain.

The question of what formats improve access and dissemination is pressing. As cultural workers we should be interested in making access as inexpensive as possible to the source texts of Jewish culture. If we’re serious about this we will be mindful to use open standards and free culture licensing that allows others to build on top of and improve our work.

Digitization and networks provide the foundation for easy dissemination of cultural works. So much of the legacy of our cultural inheritance is already in the Public Domain, and thus, free, but bottled up in print media. The tragedy is that in the conversion from print to digital media, cultural workers are using closed standards and terms-of-use agreements which limit access to other cultural innovators. It is a real travesty when amazing and ambitious projects assume ownership of our common cultural heritage through onerous terms-of-use agreements. (See for example, Bar-Ilan’s Responsa Project or Davka Corp’s license for using public domain texts they’ve digitized).

Cultures, including our own, breathe creativity and exhale innovation. We rely on the creative works bequeathed to us by earlier generations to remain rooted in our cultural identity. Synagogue members and kids in day schools, summer camps, youth orgs, and creative Jews working on their own can all benefit from our educational, cultural, and spiritual institutions cooperating with one another in sharing the bounty of our cultural heritage. As Jews, are we not all collaborating on a grand project of Torah learning, spiritual improvement, and tikkun olam? It’s time our cultural licensing choices reflect these profound intentions.

If you’re in the Jewish content world, it’s quite possible that some day, you will develop content that is relevant not only to you and your users directly, but to the wider Jewish community.  Because the siddur is so wide ranging in scope, it may even be relevant to the Open Siddur Project in particular.  Conversely, I hope that some of the essays contributed to the Open Siddur Project would be relevant to your site(s).  By “content compatibility,” I mean the ability to post content generated for one site onto the other and then further develop it.  It is possible for content to be one-way compatible or bidirectionally compatible.

Issues of content compatibility arise out of copyright law.  All literary or creative works fixed in a tangible form (including electronic texts on the web) are covered under copyright law.  Copyright law reserves certain rights to authors or owners of works.  These rights include the rights to copy a document, to share it with others, to make changes to it, and to distribute the changed document.  For a work written by an individual in the US today, these rights are exclusive to the copyright owner until 70 years after the author’s death.  Permission must be obtained from the copyright owner in order to do any of the activities covered under copyright law with his or her work.  There are certain exceptions to copyright, including “fair use,” which allows reprinting short excerpts of works under copyright for purposes such as academic discussion.  Fair use will likely cover most of your everyday uses of copyrighted works.  There are many useful online and offline resources that go into more detail.

Content compatibility becomes a major issue when a text is developed collaboratively.  If all contributing authors do not agree to a framework for sharing their contributions, the site relies on an “implied license” from the contributors to the site owner.  The implied license covers normal operation of the site, and little else.  It most likely does not include copying from one site and placing the content in another.

Aside from relying on an implied license, some websites attempt to use “parasitic” licenses hidden in their terms of use.  These licenses attempt to claim maximum rights from the contributor, while giving a bare minimum back to the community.  Sometimes, this is intentional.  Sometimes, it’s accidental.  Some sites’ operators blindly copy fill-in-the-blanks terms of use templates that assume that the content is to be kept proprietary.  One example from a popular site that provides source sheets and other learning material is presented here:

Limited Right to Use.
The viewing, printing or downloading of any content, graphic, form or document from the Site grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of any content, form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use (but not for resale or redistribution).

Editing, Deleting and Modification.
We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Site.

and the rather dangerous (and dubious, emphasis added):

Use of Information.
We reserve the right, and you authorize us, to the use and assignment of all information regarding Site uses by you and all information provided by you in any manner consistent with our Privacy Policy. All remarks, suggestions, ideas, graphics, or other information communicated by you to us through the Site (collectively, the “Submission”) will forever be the property of SITE NAME. SITE NAME will not be required to treat any Submission as confidential, and will not be liable for any ideas for its business (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future SITE NAME products, services or operations. Without limitation, SITE NAME will have exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere. SITE NAME will be entitled to use the Submission for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Submission. You acknowledge that you are responsible for whatever material you submit, and you, not SITE NAME, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.

These broad claims of ownership(!) rights over submitted content work entirely to the benefit of the contract author, and against the benefit of the remainder of the community.  One also may question whether a site which serves source sheets and audio recordings of prayer texts is compromising its own potential by limiting reproduction of its materials to personal use.  A copyright-conscious contributor (such as myself) would refuse to submit to such a site, fearing that his or her own future use of his or her own material would be threatened by the (legally questionable) claim of transfer of ownership.

For an existing forum, if the operator simply removes draconian terms of use and returns the site to an implied license structure or the terms are kept in place, the following scenarios are still possible:

• Material from the project is relevant in its entirety to a free culture project (defined below) such as The Open Siddur Project.  It is not covered by fair use.  We take terms of use at their word.  We can’t use it without asking permission for all required rights from the copyright owner(s).  We either need to answer the legal question as to whether a transfer of ownership can be extracted by a terms of use agreement or track down every contributor.
• Material from another free culture project (such as The Open Siddur Project, Wikipedia, or Wikisource) is relevant in its entirety to the project.  The material cannot be copied wholesale and further developed without playing by the rules of free culture (see below).
• Fifty years from now, everyone who wrote for the project has moved on to other stages in life and other projects.  The site or project as an institution may not exist anymore, and nobody knows who are the heirs of its “intellectual property.”  Some of the material is still circulating, still relevant, and still under copyright.  Even if the original intent of the authors were never to sue anyone for use of the material, the future researcher does not know that because either no policy was written down or the written policy indicates that his or her usage rights are limited.  The material may become unpublishable and lost forever.  This problem is known as the orphan works problem .

The free culture community has developed mechanisms to make sharing and collaborative development easier.  The principles that define works of free culture are:

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
4. the freedom to make changes and improvements, and to distribute derivative works

Note that these freedoms do not discriminate on the basis of endeavor, and all free culture works allow creation of derivative works and commercial use.

The free culture community is a group of individuals who believe that culturally-relevant works of their creation should have minimal legal impediments to their dissemination and further development.  The mechanism involves use of copyright licenses, which work by having each contributor agree to release his or her work under a given set of terms at the time of submission.  All collaborating authors may then use, share and build on the work using the rights given by the original author.  Users may share, modify, publish, and distribute the work on their own without asking for permission, as long as they comply with the liberal terms of the license.  None of the free culture licenses transfer ownership of the work.  An author may later decide to release his or her own work in another forum under a different set of terms (including “all rights reserved” copyright).

A major organization responsible for maintaining the legal framework of the free culture community is Creative Commons.  Because some authors want to retain different sets of rights over their works, Creative Commons has developed a set of copyright licenses that are widespread, well known, and well understood.  Their licenses are divided by sets of terms (note: this is just a summary of the most important features.  Read the full legal code before making a decision.):

• Creative Commons Zero – “no rights reserved” – essentially, an internationally-applicable public domain declaration, indicating that the author surrenders all rights to the work.
• Creative Commons Attribution – The work may be copied, modified, and distributed, as long as attribution is maintained and reference is made to the license.
• Creative Commons Attribution-ShareAlike – The work may be copied, modified, and distributed, as long as attribution is maintained and reference is made to the license, and all derivatives of the work are also released under the same terms.

Creative Commons also offers some licenses with *non free culture* terms (in combination with the Attribution and/or ShareAlike terms):

• NonCommercial – No commercial use.  Use of this term will also place severe limits on the work’s use in the future, both by you and your users.
• NoDerivs – The work may not be changed from its original version.  Use of this term will completely curtail communal development to the same degree as “all rights reserved” copyright.

Wikipedia and Wikimedia Commons, the largest free culture projects, have chosen the Creative Commons Attribution-ShareAlike 3.0 license for their material.

The Open Siddur Project has a somewhat more complex licensing structure, in which works that originally derive from the public domain are released with no rights reserved (Creative Commons Zero); other original works (such as translations and commentaries) may also be released under either Creative Commons Attribution 3.0 or Attribution-ShareAlike 3.0, at the discretion of the author.  A combined work retains the licensing properties of the most restrictive of the set of the licensing terms of its included components.

In many cases, the Open Siddur Project’s use of Creative Commons licenses makes one-way compatibility from the Open Siddur Project to most other projects a given.  In most cases, attribution must be maintained; if the essay of interest has a ShareAlike licensing term, the derivative essay would also have to be released under the same terms.

In the other direction, the Open Siddur Project cannot currently copy and distribute works derived from sites with no explicit policy (or an explicit proprietary policy) because of their “all rights reserved” copyrights.

Because securing rights requires the consent of all contributing authors, it is best to approach these issues at the start of a project before accepting contributions from large numbers of authors.

Joining the free culture community involves surrendering some control over submitted works.  In exchange, the entire community benefits from more widespread dissemination of knowledge.  In addition to simple propagation of ideas, free culture also allows works to develop in novel ways that the authors could not have imagined.  I hope that you will consider joining the Free Culture community in building enduring, truly collaborative resources for the Jewish community.

We hope to begin a conversation about content compatibility with the world of online Jewish content providers. If you’re interested in joining it, talk to us.