Towards a Standard of Freedom: Creative Commons and the Free Software Movement

Posted 29 Jul 2005 at 19:18 UTC by mako Share This

Creative Commons is described as a movement translating the Free and Open Source software movement model to other forms of creative works. This description misses some important differences between the projects. Unlike Free Software, Creative Commons has failed to set any standard of freedom. This article compares Free Software's "essential rights are unreservable," with Creative Common's comparitively hollow, "some rights reserved."

Towards a Standard of Freedom: Creative Commons and the Free Software Movement

Creative Commons (CC) advocates, like Lawrence Lessig, have become fixtures on panels discussing Free and Open Source Software (FOSS) [1]. Frequently, they are seen as representative of the growing movement to translate the principles of Free Software to the world beyond code. Creative Commons advocates, directors, and supporters increasingly describe the project as an attempt to apply the principles of Free Software, appropriately adapted, to less technical forms of creative expressions like music, writing, and the visual arts.

Comparisons between CC and Free Software are hardly coincidental. The CC website proudly describes the inspiration for the project as, in part, "the Free Software Foundation's GNU General Public License (GNU GPL)." Many of the minds behind CC (Lawrence Lessig, James Boyle, and others) made important contributions to legal and philosophical discussions of the Free Software movement before starting CC.

However, while the GNU GPL is FOSS's most famous legal artifact, Free Software existed as a concept, as a movement, as code, and as licenses before the GPL. As the GPL is revised and replaced [2], Free Software remains unchanged. There are many free software licenses and most look little like the GPL.

Free Software's fundamental document is Richard Stallman's Free Software Definitions (FSD) [3]. At its core, the FSD lists four freedoms:

  • The freedom to run the program, for any purpose;
  • The freedom to study how the program works, and adapt it to your needs;
  • The freedom to redistribute copies so you can help your neighbor;
  • The freedom to improve the program, and release your improvements to the public, so that the whole community benefits;

When a piece of software's license provides these freedoms, the software is considered free software. When a piece of software's license does not, it is not free. A requirement for attribution does not violate the four freedoms; hence, a license requiring attribution can be free. A non-commercial use clause restricts the first freedom; as a result, licenses barring commercial use are considered non-free -- for better or for worse. After these fundamental freedoms are satisfied, FOSS is license agnostic.

Free software advocates have been able to use the free software definition as the rallying point for a powerful social movement. Free software, like the concept of freedom in any freedom movement, is something that one can demand, something that one can protest for, and something that one can work toward. Working toward these goals, Free and Open Source Software movements have created the GNU/Linux operating system and billions of lines of freely available computer code.

For the CC founders and many of CC's advocates, FOSS's success is a source of inspiration. However, despite CC's stated desire to learn from and build upon the example of the free software movement, CC sets no defined limits and promises no freedoms, no rights, and no fixed qualities. Free software's success is built upon an ethical position. CC sets no such standard.

At the core of most CC licenses are a hodge-podge of pick-and-choose (and often incompatible) features that can include prohibitions on commercial use, the requirement to release and redistribute derivative works freely, the requirement to retain attribution, and a blanket ban on derivative versions altogether. The only quality common to all of these licenses was that verbatim copies would always be distributable non-commercially. In other words, while works under CC licenses may be licensed under any number of terms, all works allowed the non-commercial copying of unmodified versions without permission.

A new license, the CC "Sampling License" or "Recombo" license -- created in association with the band Negativland the Brazilian music living legend (and Minister of Culture) Gilberto Gil -- prohibits even verbatim distribution while allowing for commercial and non-commercial sampling. Another new license allows a for a broad range of freedoms -- but only for those living in the developing world.

It is important to note that every CC license is aimed at a particular problem and addresses a particular need. A blanket restriction on commercial use and derivative works opens the door to many of the most widespread models for financial sustainability in the art and culture industries today. The risks of lawsuits over sampling and the onerous process of requesting permission has a real silencing effect that the Recombo license is intended to address. The Developing Nations license addresses a real global imbalance in the way international IP is structured. Each new license exists for a good reason. But this is not the model that has made Free Software successful

Creative Commons licenses are designed to give artists choice. Lessig personally describes how Creative Commons, "gives creators the freedom to choose how their works are used." This is not freedom in the sense that the term is used in Free Software.

Until relatively recently, CC stood for, and could act as a nexus for a social movement focused on the requirement for verbatim non-commercial use of artistic works. A low bar in the minds of some, especially in comparison to Free Software, but a de facto bar nonetheless. The new Recombo and Developing Nations licenses remove even that. While Free software has succeeded by building a social movement for the idea of freedom, CC refuses to set any such limit.

Instead, CC's inability to represent even an minimal attachment to any defined spirit of sharing is apparent each time someone approaches the CC board with a real problem and an interest in distributing their work under a license that is more restrictive than the most restrictive CC license but also less restrictive than the status quo.

Had CC followed a model similar to that of Free Software, they would have drawn a line in the sand. "This is a Commons film. That film is not." It would have sent a clear message that making a CC document is more difficult than convincing the CC board to add another license to the CC website. By drawing this line, CC would be taking the risk that not as many individuals would be able or willing to use CC licenses and that some injustices and imbalances might not be addressed by their project. Non-participation, even en-mass, was a risk Richard Stallman was willing to take in the pursuit of more freedom for software. Ultimately, users of the GNU/Linux operating system created by the social movement he initiated have his stubbornness to thank for the consistent level of software freedom they enjoy.

To be sure, many programmers and software companies are uncomfortable with the freedoms required by the FSD. Programmers are welcome to release applications under a license that prohibits terrorists, fascists, or pacifists from using their software but their software won't be free. There are very good and thoughtfully considered reasons for each freedom in the FSD; there may also be very good and thoughtfully considered reasons for choosing not to use them. Free Software draws a line and leaves the final judgment calls up to the developers applying the licenses and the users using the software.

Not every programmer has to write free software. Not every programmer does. But if coders want to call their project "Free Software" or "Open Source," they must pass the bar set in the FSD and OSD. If a programmer wants their software included in Debian, listed in the Free Software Directory, or supported by SourceForge, Free Software's core freedoms must exist for their users. As a result, few coders write "almost free" software today while, proportionately, many more did two decades ago. With Creative Commons there is no bar and no essential freedom. As a social movement, CC has failed to take positions and set goals in the ways that made free software successful.

By no means is CC a bad thing--this article is distributed under a CC license. Every CC license clearly describes a right that cannot be taken for granted in contemporary copyright. With licenses that declare an author's intentions, the need for lawyers and permission-asking is significantly minimized. CC licenses are easy to understand and easy to apply. But by failing to take any firm ethical position and draw any line in the sand, CC is a missed opportunity.

Because CC has the support of influential intellectuals, and commands high profile institutional support, the creators of CC have an opportunity to define a movement for the production of content in what they thought was a better, more "free," more "open," or more "common" manner. They have not.

When asked at the World Summit on the Information Society about non-commercial use clauses, Lessig said that he thought they were overused and frequently a bad idea. For whatever reasons, 3/4 of CC-licensed works prohibit commercial use [4]. Lessig provided licenses and he hoped most creators' conservatism and fears would not get the better of them. Apparently, they did; artistic works under these licenses are less accessible to a large number of creators.

Perhaps a literary or musical work can be free and open and restrict commercial use. Perhaps it can't. Inspired by the Free and Open Source Software movement, one of the finest collections of legal and philosophical minds critical of contemporary intellectual property policy had the opportunity, foresight, and institutional and grassroots support to weigh in on a set of important issues -- on either side. They did not. To this day, no widely discussed -- much less widely accepted -- definition of free, open, or common content exists.

This article is not an attempt to criticize the presence of non-commercial use clauses, or any of the other clauses, in Creative Commons' licenses. Instead it is a criticism of the fact that there are no defined criteria by which any clauses can be categorically blocked. It is a criticism of the fact that there is no base level of freedom that every Creative Commons license must provide.

Creative Commons's website reads:

Too often the debate over creative control tends to the extremes. At one pole is a vision of total control -- a world in which every last use of a work is regulated and in which "all rights reserved" (and then some) is the norm. At the other end is a vision of anarchy -- a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation -- once the driving forces of a copyright system that valued innovation and protection equally -- have become endangered species.

CC's goal to escape a world of "all rights reserved" is laudable but they fail to describe what it will be replaced with except to say it will be better. While something slightly better is surely desirable, it might also be too little. Balance, compromise and moderation are certainly admirable and worthwhile goals; but undefined, unlimited, and unchecked, conservatism risks reducing CC's concept of balance toward little more than "slightly better than the status quo."

While CC's licenses are novel and effective tools, CC's "freedom of choice" is hardly new; it forms the foundation upon which copyright and all copyright licensing schemes work. It bears little resemblance, in scope, extent, or philosophical basis, to the Freedoms at the core of the Free Software movement. Lessig's cries for "free culture" are not accompanied by a description of what freedoms -- of use, of distribution, or of modification -- free culture will provide.

CC has replaced what could have been a call for a world where "essential rights are unreservable" with the relatively hollow call for "some rights reserved." If the Free Software example is representative of how things might have been, the total amount of freedom the consumers of creative works enjoy in the future may be the price paid for CC's popularity.

It is not too late to discuss which rights should be unreservable in an era of free information. When we have defined free information in terms of essential freedoms, Creative Commons will have provided us with the licenses through which to build this movement.


[1] The Free and Open Source Software movements are parallel movements with a complex relationship and history outside the scope of this essay. When discussing software, licenses, and development communities, the terms are usually synonymous. When discussing the motivation, philosophy, and politics behind the the production of this software, the terms vary wildly. As to the nature of the distinction, an inadequate but useful distinction can be drawn: Free Software is a social movement; Open Source is a development methodology. For the sake of this paper I err on the side of overusing Free Software but in many cases, especially when discussing inspiration by Free Software, the Free/Open Source split is hardly clean.

[2] The current version of the GPL is the second version. A third version is currently being worked on by the Free Software Foundation.

[3] The Open Source Definition (OSD) was a verbatim copy of the Debian Free Software Guidelines (DFSG) that has diverged slightly over time -- a checklist of qualities useful in determining compliance to the letter and spirit of the FSD. When the FSD is mentioned in this piece, it in almost all cases be substituted for either the OSD or the DFSG.

[4] Raw statistics of web links to the different licenses are as good an indicator as we have of the licenses' popularity. They are available at and at other places.


This work is licensed under the Creative Commons ShareAlike License. To view a copy of this license, visit or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.

So..., posted 30 Jul 2005 at 04:13 UTC by tk » (Observer) want the Creative Commons movement to take a definite stand on freedom. And that stand on freedom has to be agreeable to you, otherwise it's not true freedom.

And I should point out yet again that the so-called Free Software "Definition" isn't as fixed and unchanging as it sounds. Here's a nice tidbit from the FSD itself:

To decide whether a specific software license qualifies as a free software license, we judge it based on these criteria to determine whether it fits their spirit as well as the precise words. If a license includes unconscionable restrictions, we reject it, even if we did not anticipate the issue in these criteria.

In other words, whether a license is free also depends on RMS's brain. Is this what you call a defined limit?

hum, posted 30 Jul 2005 at 08:59 UTC by yeupou » (Master)

"whether a license is free also depends on RMS's brain. Is this what you call a defined limit?"

Whether a license is libre software depends on the GNU project principles, shapped by RMS indeed.

This is a defined limit, it's not hard to know what these principles means.

Anyway, this whole article talk about "software" . But "free software" promoted by GNU is a matter of programs and program documentation. Unlike what Debian promote. We cannot debate the issue without knowing if we are talking about software as programs or as anything that is not hardware.

re: hum, posted 30 Jul 2005 at 13:07 UTC by mako » (Master)


When I say "Free Software" I am referring to computer programs. When I say content or creative works, I am referring to primarily creative works like film, poetry, novels, or photography. This is a distinction that both the FSF and Creative Commons share and respect.

Richard Stallman and the FSF do not think that documentation is software. They do think that because that documentation is primarily functional, it should be licensed similarly to software which is primarily functional by nature. Stallman believes that non-functional parts of document (like political or opinionated sections) do need to need be held to the same standard. The FSF believes that documentation should be treated differently than software which is why the FSF wrote atheGNU Free Documentation License wihch is very different than their software licenses.

You are correct in implying that the Debian project interprets software to mean "anything that can be in Debian." As far as I am concerned, calling the content of books "software" is a sign that "software" has become a term of art in the Debian community and its use in this way is confusing and unintuitive outside of that project. Of course, if this confused you, perhaps I am incorrect.

re: so, posted 30 Jul 2005 at 13:13 UTC by mako » (Master)

In other words, whether a license is free also depends on RMS's brain. Is this what you call a defined limit?

The Open Source Definition, the Debian Free Software Guidelines, and the Free Software Definition each need applying -- as does any law or standard. This done is by humans. It is also no secret that among those camps, folks don't agree to things just because RMS said so.

The fact that those three articulations of the same or similar standard have been applied with almost identical results shows just how consistent and well defined the standard really is and how little it has to do with any one person's whim at this point.

CC License Looks Clear Enough To Me, posted 30 Jul 2005 at 16:21 UTC by nymia » (Master)

The article seems to paint or rather allege the inability to define a concrete distinction, causing some sort ambiguity on the application part. But that is probably due to the nature of the license as defined on CC legal [1, 2].

I do think CC has made the distinction in relation to copyright law. And CC does seem to build and innovate on top of copyright. Wasn't that clear enough?

I often use the NoDerivs option..., posted 30 Jul 2005 at 20:21 UTC by MichaelCrawford » (Master)

... for the same reason that Stallman argues that the GFDL is right to allow invariant sections. Most of my writing to which I've applied the CC license express my deeply held beliefs, and my objective is to argue persuasively for some political or social purpose.

If I allowed derivative works, anyone could revise my writing either to weaken my arguments or to argue for positions I don't believe in.

It's often argued that I could sue someone for libel if they did that. But I assert someone could distort my writing so as to have that effect yet without committing libel. Libel only applies if actual damage is caused by intentional malice. I don't think it would be hard to distort most persuasive writing in such a way that either damage or malice could not be proven.

I discuss this in more detail in my recent essay Why I'm Proud to Be a Dirty GNU Hippy which coincidentally has the CC Attribution-NoDerivs license.

If a license had not been available which forbid derivative works I would have been forced to say "All Rights Reserved". There is no way I could be convinced to allow my writing to be distorted. At least with the license I chose, one can use it commercially, for example to print it in a book or magazine that is sold for money.

After long reflection - a couple of years worth - I decided that some of my purely technical writing had no business having invariant sections. That's why a couple of days ago I put these articles under the CC Attribution-Sharealike license.

I also say in my above essay that because I want other musicians to draw inspiration from my music, I'm going to give it the Attribution-Sharealike license. I'm just waiting until I get time to fix a technical problem with one of the mp3s.

re: so, posted 30 Jul 2005 at 20:36 UTC by tk » (Observer)

mako: that's exactly the wrong comparison. First, the claim that GFDL, OSS, and FS are different articulations of the same or similar standard is without support. (And besides, if OSS and FS are so similar, then why does the FSF try to paint the two as being so radically different? Oops...)

Second, even within the exact same FSD, the very presence of the talk about "unconscionable restrictions" allows the FSF huge amounts of leeway in interpretation. The only reason why this isn't leading to any disagreements is that all decisions on what's Free and what's Non-Free are by definition made by the FSF itself. This shows up very clearly in other parts of the FSD (emphasis added):

If a contract-based license restricts the user in an unusual way that copyright-based licenses cannot, and which isn't mentioned here as legitimate, we will have to think about it, and we will probably decide it is non-free.

Sometimes a license requirement raises an issue that calls for extensive thought, including discussions with a lawyer, before we can decide if the requirement is acceptable. When we reach a conclusion about a new issue, we often update these criteria to make it easier to see why certain licenses do or don't qualify. [...]

Notice that there's absolutely no provision for people outside the FSF to decide whether a license is Free or Non-Free based on the FSD; it's always "we" (i.e. the FSF) who make the decisions. And in fact "we" (the FSF) are even allowed to update the criteria -- i.e. the very definition -- if after "extensive thought" (whatever that means) "we" think that's necessary! But isn't the FSD supposed to be unchanging?

To summarize, I still don't see how FS is in any way more clearly defined than CC. In both cases, there's a closed group of people who decides in an opaque manner whether something should be allowed or not.

Clearly defined, posted 30 Jul 2005 at 22:15 UTC by Uraeus » (Master)

I think Mako have a good point about CC seemingly having a less clear set of values than OSI or FSF. When a new license comes along I think most of us here would be able to correctly evaluate wether the FSF would approve it as a free license or if the OSI would approve it as an OSI compliant license.

I guess it would be nice if CC took a clearer stand on licensing at least, kinda how the FSF advocated the GPL even if they also offer the LGPL.

RE: I often use the NoDerivs option..., posted 31 Jul 2005 at 14:38 UTC by mako » (Master)

... for the same reason that Stallman argues that the GFDL is right to allow invariant sections. Most of my writing to which I've applied the CC license express my deeply held beliefs, and my objective is to argue persuasively for some political or social purpose.

You're responding to an argument I did not make. I'm not writing about the NoDerivs options here. I am writing about the lack of any standard by why any license can be blocked:

This article is not an attempt to criticize the presence of non-commercial use clauses, or any of the other clauses, in Creative Commons' licenses. Instead it is a criticism of the fact that there are no defined criteria by which any clauses can be categorically blocked. It is a criticism of the fact that there is no base level of freedom that every Creative Commons license must provide.

I may not like the NoDerivs license.. Or I might. I'm not making that argument this week.

I agree, posted 31 Jul 2005 at 17:06 UTC by Omnifarious » (Journeyer)

CC needs to define a set of values that they stand by instead of some fuzzy, feel-good criteria that allows things like the developing world license. Right now, the only criteria seems to be "It must be less restrictive than current copyright law would otherwise allow." and that criteria isn't strict enough to be useful.

At one point in time, Richard Stallman talked in detail about what kinds of copyright would be useful for works that were not functional in nature. But, I haven't been able to find that debate since. It was a debate in which one of the other debaters expressed his trepidation before even being involved as like having to have a debate Moses about the ten commandments.

But, as usual, his ideas were very carefully thought out, but much fuzzier than his ideas about software. I think that's why he hasn't repeated them widely. Richard Stallman has generally taken care to make sure that his most public statements are the ones he's the most certain of.

I'm really interested in those ideas as a foundation for possibly building up a general new ethic for copyright in a digital age. I don't think we have one yet. I do think different rules should apply to different kinds of work. I think the free software definition is a generally excellent set of rules for software.

Objection, posted 31 Jul 2005 at 21:49 UTC by nymia » (Master)

CC needs to define a set of values that they stand by instead of some fuzzy, feel-good criteria that allows things like the developing world license.
I strongly object on that one. Copyright is supposed to protect owners and their rights, not to make a defendant/violator a criminal out from those set of values. Don't commit the mistake of merging criminal and copyright law.

Re: Objection, posted 1 Aug 2005 at 14:48 UTC by Omnifarious » (Journeyer)

Mixing criminal and copyright law? Huh? I have no clue what you're talking about. It makes no sense.

Re: Objection, posted 1 Aug 2005 at 16:46 UTC by nymia » (Master)

Just want to be sure the arguments stay in the bounds of copyright. That's all I'm interested about.

I found the article, posted 3 Aug 2005 at 05:26 UTC by Omnifarious » (Journeyer)

copyright and globalization in the age of computer networks

Joolean's Take, posted 5 Aug 2005 at 07:03 UTC by mirwin » (Master)

I agree with Joolean's concise summary.

Re: Joolean's Take, posted 8 Aug 2005 at 18:57 UTC by mako » (Master)

Joolean is right. Creative Commons doesn't set out to set a social movement but rather to give artists choice and a stable of great ready-made licenses. They've succeeded in that. I grant them that much in the essay and I am appreciate of that. That's why I use their licenses.

My argument in this piece is that this alone is not enough to replicate the success of the free software movement. For that, we need a social movement and CC is not going to give us that.

well, posted 18 Aug 2005 at 17:38 UTC by yeupou » (Master)

But in so many places, you can read "stuff license under creative commons licenses" and that's just plainly meaningless. Because it can mean everything.

Indeed, Debian as the FSF, as the OSI have, and keep it for themselves for obvious reasons, the power to change their definition of free software. But what matters is the fact that these associations are based on a clear goal (political, technical, whatever). Licenses are a mean to reach a goal, not an end. CC provides licenses but according to which principles? « give artists choice and a stable of great ready-made licenses » does not helps up to determine what is likely to be libre according to CC and, in fact, CC are not proposing a way to freedom, because they do not define freedom. They just provide licenses for anyone, independantly of their state of mind.

So, what's the point? Just to avoid crafting it own license for documents which are not programs? Why not. But clearly, there's no way you can go "toward a standard of freedom", since CC are not about a standard of freedom applied to a specific kind of wares.

In fact : - debian = one defined freedom for any wares - osi and fsf = one defined freedom for programs and technical documentation - cc = thousand of defined freedoms for each ware.

Let's get moving!, posted 20 Aug 2005 at 10:16 UTC by aicra » (Journeyer)

I agree with Mako. I have never used a CC license. If it's a project you have in mind. Count me in.

"My argument in this piece is that this alone is not enough to replicate the success of the free software movement. For that, we need a social movement and CC is not going to give us that."

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