Free and Not Free

Everton Zanella Alvarenga tossed a hand-grenade into the OER discussion group: "An interesting text by Stallman... On-line education is using a flawed Creative Commons license ... 'the CC-BY-NC and CC-BY-NC-SA licenses, as they are today, should be avoided.'"

When I asked Richard Stallman about the use of open licenses for educational materials, first he complained because I didn't use the word "free", then he said that he wasn't interested in educational content, that his arguments applied specifically to software. Clearly his views have been modified since then, as this post attests
Without extending this into a full-blown debate, as I have already written at length about this elsewhere:
  • licenses that allow commercial use are less free than those that do not, because they allow commercial entities to charge fees for access, to lock them behind digital locks, and to append conditions that prohibit their reuse
  • works licensed with a Non-commercial clause are fully and equally open educational resources, and are in many cases the only OERs actually accessible to people (because the content allowing commercial use tends to have costs associated with it)
  • the supposition that works that cost money can be 'free' is a trick of language, a fallacy that fools contributors into sharing for commercial use content they intended to make available to the world without charge
  • the lobby very loudly making the case for commercial-friendly licenses and recommending that NC content be shunned consists almost entirely of commercial publishers and related interests seeking to make money off (no-longer) 'free' content.
The problem with this is the Flat World publications or the OERu assessment scenario - content deposited with the intent that it be available without cost is converted into a commercial product. It's not free if you can't access it. Content is different from software, it can be locked (or 'enclosed') in ways free software cannot, without violating the license.

In sum, this discussion would be better conducted without further debated about which open license 'is best' and especially with fervent declarations in favour of commercial-friendly licensing. The suggestion that the free sharing of non-commercial content is not 'practical' is not Stallman at his best, and is refuted by the experiences of millions in the field.

Wayne McIntosh objected, "Stephen, your assumption is incorrect with reference to access to learning materials and the OERu assessment model.."

Again, not to pursue the argument regarding the One True License beyond reason in the present forum...
- I very specifically referred to OERu assessment, not content, and assessment will cost students $1000 for a typical 5-course semester
- I have been following and commenting on WikiEducator and OERu since the beginning, and have expressed my concerns in this regard on numerous occasions
- In particular, I expressed my concerns regarding the 'logic model' employed by OERu, as well as the 'founding partners' methodology, both of which entrenched educational institutions as an essential part of the process,
- No mechanism for recognition of learning exists, or was even contemplated, other than institutional recognition, which as noted, carries a significant financial burden

I have no objection to the mechanism whereby OERu converts OERs it receives for free from volunteers into revenues for universities. What I object to is the ongoing campaign by OERu staff to depict non-commercial OERs as 'non-free' and to lobby for their exclusion from the definition of 'free educational resources'. I wish to pursue my support of OERs in such a way that does not impose significant cost on students. To this date, the best and only mechanism for ensuring their use of OERs remains genuinely free is through the use of the NC license.

As an aside: there is always in this context a reference to the 'original' version of open source licensing, and of course Stallman's four freedoms. I would like to point out that open source licenses existed before GPL, and open content licenses existed before Creative Commons. Until the intervention of staff from large U.S. universities (Berkeley-Stanford-MIT-Harvard) these licenses required that distribution be unencumbered with cost. It is only with the intervention of staff from these institutions that 'free' comes to mean 'commercial'.

Again: people may attach licenses allowing commerical use to their work if they wish. I have no objection to this. But such people should cease and desist their ongoing campaign to have works that are non-commercial in intent, and free in distribution, classified as 'not free'. Content that cannot be enclosed within a paywall, and cannot be distributed with commercial encumbrances attached, is just as free - indeed, more free - than so-called 'free' commercial content.


To follow up on some points made by Rory:

Content (under whatever license) is 'enclosed' when it is contained behind a barrier such as proprietary encryption, a digital lock or a paywall. Enclosure does not restrict the content itself, but restricts access to the content; access is granted (typically under some other name) only via some concession, such as payment, or provision of personal information.

To my understanding, all of Flat World's content will now be enclosed behind a paywall. OERu assessments enclose assessment content. This mailing list (OER-community) encloses content behind a subscription requirement (I can't even link to discussions in my newsletter; all non-subscribers see is a barrier).

Enclosure is an important concept because it leads to 'conversion'. The process of conversion is one where what was once a resource that could be freely accessed is (for all practical purposes) accessible only through a barrier of some sort; in other words, the content is free, but has been effectively completely enclosed. This is what happened (for example) to many UseNet newsgroups. It almost happened to Wikipedia, and would have happened, has Google not intervened.

Having said that, let me be clear how perspective plays a significant role in the free / not-free debate:

- from the perspective of someone who already has the content, the content is 'not free' if there are limitations on the use of that content, including the right to sell it

- from the perspective of someone who does not already have the content, the content is 'not free' if there are barriers preventing the person from accessing the content (note that the putative assertion that the content 'could be made free somewhere' does not constitute a removal of the all-too-practical barrier

It is not to me surprising that the people with wealth - namely those in U.S. universities - could view 'free' from the perspective of those who have the content. But I speak from the perspective of one who does not have access to the content. And my argument, in a nutshell, is that the second perspective is just as valid as the first (even though the second perspective cannot afford lobbiests).

Content behind barriers - for example, content that is being sold - is 'not free'. This perspective matters. For 99 percent of the world, it's the only perspective that matters.

And finally

Totally agreed with David Wiley: "It would be great if the world were simple enough that One License to Rule Them All could exist, but it doesn't."

It needs to be recognized that for many people, 'open' and 'free' do not mean 'commercial'. For many people, the idea of 'selling a free resource' is a contradiction in terms. For many people, access to the resource, rather than making money from it, is the primary concern.

I don't wish to continue restating this (though it seems the campaigning from the CC-by people against NC is endless). I would simply urge UNESCO to respect the wishes of those people who are not commercial publishers or multi-million-dollar educational institutions, to recognize the intent of people creating NC-licensed resources to ensure they can be accessed for free, and to recognize resources licensed with a NC clause as OERs with equal standing.

This is consistent with the 2012 Paris declaration, which I remind people, refers to OERs as "teaching, learning and research materials in any medium, digital or otherwise, that reside in the public domain or have been released under an open license that permits no-cost access, use, adaptation and redistribution by others with no or limited restrictions." (My emphasis) 

Ilkka Tuomi  wrote,

> Logically, CC-BY-NC is a subset of CC-BY. In this sense, it is more restricted.

Not so. No entity in the set “CC-BY-NC” is also in the set “CC-BY”.

It’s a trick of the way CC licenses were originally formulated. The designations in fact mean:
- CC-by-Commercial (CC-by-C)
- CC-by-Noncommercial (CC-by-NC)
So as you can see, the two sets are disjuncts, specially, not-C and C

The creators of CC treated ‘Commercial’ as the default. There’s no reason why they should have had to do this. They could have established the licenses the other way (indeed, the way I would have done it):

CC-by – allows all free uses, ie., no limitations on access and distribution
CC-by-C – allows commercial vendors to restrict distribution contingent upon payment

In fact, each of CC-by-C and CC-by-NC create restrictions. They create different sets of restrictions, which may be more or less limiting, depending on your perspective.

The ‘commercial-by-default’ world in which we live is something recent and something that has been created through the use of language and the setting of assumptions. The creation of a ‘non-commercial’ clause is a way of setting ‘commercial’ as the default. It makes it seem as though ‘commercial’ implies no additional restrictions. But it’s just a trick of language, just a trick of perspective.

That’s why it’s false and misleading to say that ‘CC-by-C’ is ‘more free’, and why people shouldn’t do it.


  1. Some facts first. Wikipedia is under CC-BY-SA and though this can mean that people can sell it to you (and indeed they do), most reasonable people would agree that Wikipedia is free. Similarly, most software today is either under GPL or APL or something very close, and they all allow commercial use.

    Now my opinion.

    I think you have it backward. The corporations are the ones that stand most to benefit from restrictions on commerce. There would be nothing that would please Microsoft and Apple more than if you made it illegal to commercialize Linux and Linux derivatives (e.g., Android).

    The little guys, such as the guy who builds up a commercial web service out of spare parts and open source software... is the one that would suffer most from non-commercial licenses as the only way he could earn a living would be to license the "commercial" software from the big corporations.

    For colleges and universities, the best option is that no start-up can come in and compete against them. So non-commercial licenses is what they want... you have it backward again... they want to make it impossible for anyone to make a living in higher education outside of their organizations... they don't want to be out-innovated. So universities and colleges want non-commercial clauses.

  2. First, content is not software. Content can be enclosed in a way that software cannot.

    Second, I'm not so certain Linux (and especially Linux users) have benefited from the commercialization of their product.

    Third, I don't see the purpose of open content licensing being to support "the guy who builds up a commercial web service out of spare parts and open source software." Access, rather than commercial development, is the purpose of open content.

  3. Would you support clarification of what "Non Commercial" means so that use by publicly-funded, not-for-profit post-secondary institutions could feel safe in reusing content licensed as CC-By-NC without fear of being sued? This was a proposal, since dropped, in the discussions about what a new CC v4 license should address.

  4. > Would you support clarification of what "Non Commercial" means so that use by publicly-funded, not-for-profit post-secondary institutions could feel safe in reusing content licensed as CC-By-NC without fear of being sued?

    Yes, but with some caveats. The institution in question can't set up a commercial enterprise, selling NC contents to raise money. It's the *use* of a resource that makes it commercial, not the nature of the institution using it.

    In general, my dividing line is this: 'non-commercial' means 'not restricting access on condition of payment of money (or other items of value)'. So if an institution, whether commercial or non-commercial, uses NC in a non-restrictive way, there's no problem. But the minute they put up a paywall around the content and start charging for access, that's commercial.


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