What Copyright License Should You Choose?

in copyright •  7 months ago

So, for those of us who don't know, I'm a bit of an amateur copyright buff, especially in the field of open licenses. I took a one-semester class on copyright law under the late Dennis Karjala as part of an interdisciplinary program (I am not a lawyer), but even before that, I had a keen interest in the subject of licenses, especially general (mass) licenses. I'm that one guy who reads the EULA, or at least the interesting bits. Also, I'm focusing on US copyright law. No patent law, no trademark law, no international/foreign laws. I ain't a lawyer. But I do make open content. And that means I need to know my licenses.

I'm going to break down the terms of what the licenses mean, and talk about the reasons you might choose each one.

First, let's talk about cost.

Cost has nothing to do with your licensing scheme most of the time. This article has all rights reserved (the default, unless you say otherwise), but it's still available entirely freely.

You can theoretically have a license agreement that says something like "User shall pay $X in order to be permitted to use/view this content", but that's not usually how licenses work (usually the relevant part of a license just says "User must acquire this work from an official channel, e.g. not piracy" if it even goes that far).

So don't think that any license necessarily changes how you can price and sell your work. Of course, more permissive licenses may mean that other people can redistribute it freely, but that's not something that keeps you from distributing it however you want (of course, you should consider the consequences of trying to sell something that is available from your neighbor for free at an exorbitant cost).

Just because something is "free" (libre) doesn't mean it's free of cost, either. A lot of software has freely available source code (or freely available elements in its source code), but you'll pay through the nose if you don't compile it yourself, which is often not in the novices' purview.

What is a Free License?

A free license can mean different things to different people (and woe befall the person who uses the wrong definition in the wrong group), but it generally refers to licenses that:

  • Allow people to use/copy works
  • Allow people to make derivatives of works
  • Allow people to modify works
  • Allow people to redistribute your work, and modified versions

Basically, under a standard copyright scheme you're not free to change or republish something. There are limits to what that means: for instance, you're not breaking a law by reading this even though I'm reserving the rights to it, because I have implicitly licensed you to read it by posting it publicly.

You can't copy and paste it elsewhere, though. You can link to it (at least under US law), but not necessarily embed it depending on the methods you use (e.g. if you pull my text raw from the site and repost it elsewhere). You can't technically even download a copy of it, except for your own personal use, and even that could be shaky (you can use it in the means I provide it, here on Steemit, but not necessarily anywhere else). Every time you've downloaded a video from YouTube you've violated the DMCA and a slew of other legislation intended to protect big property owners.

Will you get prosecuted? Probably not. There's a lengthy process involved, and only big corporations or associations really benefit heavily from copyright law. With that said, you could get prosecuted, and the penalties are incredibly harsh if you do get the full brunt of the law, which people do.

If you make a copy, however, you are committing a felony every time you create a copy. This means that if you put an illegal file on a flash-drive, you've now committed two felonies. If it's on your hard-drive when you back it up, that's a felony. If you torrent it, you've already done felonies for days if you're seeding.

Any mistake, and you're looking at several-digit fines and jail terms when dealing with restrictive content, even if that occurs at a rate roughly equivalent to being struck with lightning.

And this is where restrictive licenses are less valuable for many circumstances. For instance, unless I ease up on rights restrictions, you couldn't print this and show it to a class without approaching me for a license. Now, would you be likely to be prosecuted? No. Could you maybe get by with a fair use exception? It's possible, but not fun. Their lawyer is bigger than yours. Can you usually settle for a fraction of the penalty? Yep. Still not fun.

Free licenses basically say: All those good things you can do with something are officially cool!

Except when they don't.

Degrees of "Freeness"

Before you do anything with a free license, we should talk about the bugbear in the room: Creative Commons.
Creative Commons covers most of the range of "free licenses", including some you would probably find incredibly restrictive. We're also going to use Creative Commons as our example because it's the most common non-software license out there, even though I have some complaints about it that we'll see in a bit. It also has some things that tend to violate our tenets of freedom, and we'll talk about those as well.

Creative Commons license icons, released under CC-0

True Freedom

If you want true freedom, you can release your work into the public domain, waiving all rights. This is the polar opposite of reserving all rights. There are a few ways that people like to do this, like the Creative Commons 0 license, the colorful WTFPL, and the Unlicense. The Unlicense and WTFPL are oriented toward software, and CC0 is oriented toward creative and scientific works.

You could also simply say something like "All rights released into the public domain", but that's not always enough to be legally binding. CC0 is a good bet as a fallback, though it has its own issues.

The idea behind a public domain release is to simply let anyone use your work in any way. You're giving up all control, and even your right to be named in conjunction with the work (though it's ethically dubious to intentionally omit the name of a creator just because the work is in the public domain).

I usually like public domain licenses, but they often only impact copyright (CC0 has this problem). Be aware that you may run into issues with trademark and patent law, but since a small minority of people need to worry about that you're good to go with a PD license most of the time.

Permissive Licensing

Permissive licensing goes a step further than a public domain license, but still generally lets people do what they want to do or need to do, depending on the basis of your work.

The most permissive licensing schemes are something like the Creative Commons Attribution license or MIT license. My personal preference is for MIT for software, and a custom license for other stuff (I use my own permissive license, because I don't like the Creative Commons licenses for reasons I'll get into later).

The most basic form of permissive licenses requires attribution, basically saying that you want people to acknowledge your efforts. I'm a fan of this; it's the ethical thing to do anyway, so it's not really a cost so much as a simple matter of self-protection.

With that said, there are a few reasons why you might not want permissive licensing.

If your main income stream is generally advertising or view based (like Steemit), you may be fine with having everything be permissively licensed. People sharing your stuff and having to link back to you is generally beneficial, unless you're so famous and influential that everyone already tunes in and you're letting people poach off of you.

For more traditional media, however, you're going to see issues. Anyone can sell your work for whatever cost they want, so you can't set a high barrier to access. Now, you could ask for people not to out-compete you, but that would be a gentleman's agreement with no binding force if you've released under a permissive license.

If you're going to balk at the idea of people under-cutting you, no truly free license will prevent that.

Copyleft Licensing

Personally, I don't consider copyleft free. This is something of an unusual position, but I think that you're really being quite restrictive by telling people how they can license their derivatives; that's their work, not yours.

With that said, I'm also a nutjob who learned from one of the most quixotic figures in copyright law, so take that with a grain of salt. Copyleft licenses do have some things worth looking at, even if you wind up agreeing with me that they're no better than fully restrictive licenses in most cases.

The two copyleft options I'm going to look at are CC-SA and the GPL. There are distinct versions and variants of the GPL in particular, but we're not going to go into detail.

The Creative Commons Share Alike license is my least favorite free license on earth. Some of this may be because I really liked Stallman as a child and drank the FSF cool-aid, and by the time I learned about Creative Commons I'd moved to preferring permissive licenses.

Copyleft licenses are sometimes also referred to as viral licenses, which is sometimes a product of fearmongering and sometimes incredibly accurate.

The reason why I don't like the CC-SA license clause is that the Creative Commons primarily protects creative works, so there's no reason to require derivatives for interoperability. The way CC-SA works is that anyone who uses a CC-SA work must license anything they make with the work under the same license.

This prevents people from making works more free or less free alike. Most importantly, however, it lacks some of the benefits that the GPL's copyleft nature grants, like making sure that people who adapt code are able to preserve it.

The reason for this is due to the nature of how IP works in such cases. In literary and artistic works, you can use some of the ideas of anyone if you don't use their execution. For instance, I can write about zombies without worrying too much about running into issues, even zombies brought about by viral infections in a similar vein to The Walking Dead.

CC-SA creates a gray-zone. On one hand, it is viewed as more reasonable for the user of a copyleft license to demand enforcement on intellectual property, since they're the "little guy" most of the time. On the other hand, many proprietary works have spawned derivatives that have been in the clear from copyright entanglements (like parodies and genre-companions) that have been protected under the traditional systems.

I'll get to an example of this causing angst in a bit.

The General Public License is probably the most well-known software license, if only because its advocates are very good at promoting it. You would not be reading this without the GPL, which should be a testament to how it works.

One of the reasons why GPL works where CC-SA doesn't is that you can use GPL software via intermediaries: I can have a program connect to the GCC, for instance, without licensing it under the GPL. This interoperability is key and something that isn't accounted for in the Creative Commons scheme. If I have a book with a SA-licensed image in it, I have to worry about whether or not that license will impact my book.

Other "Free" Licenses

From this point, we're moving away from truly free licenses to more restrictive licenses.

At this point, you're going to see the term "libre" and "gratis" pop up in discussion.

"Libre" licenses are the free licenses we've talked about earlier, that generally allow people to do what they want.

"Gratis" licenses say that people can use stuff for free, but it's more giving everyone a free copy rather than letting them have rights associated to the product.

I'm going to quickly look at the Creative Commons Non-Commercial and Creative Commons No Derivatives licenses, and talk about them really quickly, since they cover a good majority of what you'll see in "gratis" licenses.

Non-Commercial Clause

A non-commercial clause basically says you can't make money off of a work. Sometimes you are allowed to include it in a work that has its own purpose (for instance, some licenses, but not CC-NC by my judgment, would allow me to embed a work within a Steemit post).

The way that this works varies, but in some cases you are allowed to charge a nominal fee to cover the cost of production (keep your receipts!), in others you are not even allowed to do that.

This license is popular for people who like to avoid competition, but still allow people to freely share their work. The popular-ish roleplaying game Eclipse Phase uses a Creative Commons Attribution-Noncommercial-Share Alike 3.0 license.

Despite its relative market share and its ostensibly open nature, it has only a few dedicated third-party content creators (including, formerly, myself). Compare this to the more traditionally licensed Dungeons & Dragons, which has people (but probably not very many) who make a decent income off of creating content for it.

This is the big pitfall, and one of the reasons I don't suggest the more strict libre and gratis licenses, since few people actually remix and adapt a game and setting about a world that is heavily focused on those same themes.

No Derivatives

The question of no derivative gratis licenses is a similarly dicey one to the non-commercial license. It's definitely not open, but it doesn't necessarily keep people from selling a copy of your work, so long as it is faithfully recreated.

Forbidding derivatives is aligned with the notion of moral rights in many countries. Basically, you're saying that you want people to be able to see and use your work, but not to alter and modify it. This protects your agency as a creator, but discourages reuse.

I actually consider the lack of ability to make derivatives to be less frightening than working with a share-alike licensed work. There's less gray area, and there are even times when you could include something in a larger work without having issues (for instance, reproducing an image in a book).

There's a table showing these use cases in Open Content: A Practical Guide to Using Open Content Licenses, but it's CC-BY-SA, so I won't be embedding it here. You can go and check it out if you want to.

Why do I dislike the Creative Commons?

If you're still reading (why are you tormenting yourself?), I want to talk for a moment about why I dislike a number of the Creative Commons licenses.

Go take a look at the CC-BY, one of the simplest licenses the Creative Commons offers.

Do you see the issues?

Barring the fact that the Creative Commons licenses really like self-advertisement (does your attribution statement need to require the type of license if the intent is simply to make sure the creator gets credit?) there is one big issue here.

You don't have to look hard to see that the license is not "human readable". There are summaries available, but they lack core clauses and ideas that are in the license itself.

My general rule of thumb is that any license that takes more than two minutes just to read without looking for comprehension is too complicated to really work well. The Creative Commons license is well over a thousand words long.

There are other issues with the Creative Commons licenses as well: since people often can't understand all the clauses they often include things that are really good for 90% of cases and will mess people up 10% of the time (OpenGameArt had to make their own variation on the CC licenses because they once forbade encoding in proprietary formats in SA versions, and still include language that could do so).

As a general rule, unless you're really willing to commit to the Creative Commons licenses, you're better off with an equivalent license, though there are not very many of those that exist. I made my own, which would apply equally well to any sort of written content (it's intended to cover text, images, and documents), but that's something that requires a fair amount of wherewithal and investment.

The exception to this is the public domain dedication, which is actually a quite good Creative Commons license.

Piracy, Freedom, and Money

I'm going to take a moment away from a hard look at licenses to talk about why I like open licenses and using them as often as possible.

You see, we have this thing called the internet. It's a great tool for getting in touch with people, sharing stuff, and generally being able to access anything at any time.

This has upsides (like the fact that you're reading this, hopefully) and downsides (the fact that almost anything is available includes things that probably shouldn't be). One of those downsides is piracy and intellectual property theft.

I'm not trying to say that piracy is necessarily as bad as it's made out to be. There are people who suffer on account of piracy, but many of them have that suffering in lieu of the suffering they would face in obscurity. Intellectual property theft is also common, though the distinction is subtle. I consider piracy to be taking stuff outside a license, and IP theft to be doing the same, but pretending it's yours. There's not a whole lot of legal distinction, largely because the laws for copyright infringement didn't foresee a future in which anyone can make a copy of something with a keystroke or two.

Piracy is still a great damaging force to small publishers, however. The effect, again, is probably not as dramatic as it is made out to be, but it's everywhere.

And one of the things that pushes piracy is giving people poor experiences. Pirates often get DRM-free works, and ones that are available in otherwise restricted regions and formats.

Going with an open license can remove that incentive to pirate, ensuring that you maintain the ability to distribute your own works. Many pirates will not pay for a work, even if they are able to sample it and enjoy it. Releasing under a libre or gratis license does not change this reality, but it recognizes the fact that your legitimate users should get the same treatment.

Having derivatives can also bring attention back to you, with people becoming aware of your works after they have been remixed, adapted, or redistributed by others. Unless you're making massive money through a traditional publishing system, you're probably as well off with an open license.

Wrapping Up

Hopefully this helped people understand licenses a little better. As a reminder, if you don't choose a license, you keep all your rights (under US law; your jurisdiction may differ), and choosing a license lets you send a clear message to people about how you want your works to be shared and remixed.

I suggest that people go for permissive open licenses; I would like CC-BY if it were less obtuse, and like the MIT license for software. The best solution is to study copyright law, but for the average person that's still a pretty lousy solution. If you're a writer or artist, Creative Commons serves you well, but it does have some issues with anything that involves encoding in proprietary formats.

Oh, and feel free to make physical copies of and otherwise redistribute this article. Just mention that it came from us, @loreshapergames on Steemit, if you post it somewhere, with a link back to this post if you're distributing it in a digital format. Thanks!

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