Wednesday, September 01, 2010

Paley & Doctorow argue over Non-Commercial licenses « Nina Paley’s Blog

Venerable author Cory Doctorow and I had this email correspondence this Summer, with the intention of sharing it to illuminate some issues confronting Free Culture and Creative Commons licenses. My thanks to Cory!

May 17, 2010

Hi Cory,

I’m writing to invite you to experiment with what I think is a brilliant innovation from the Creator Endorsed Mark.

You clearly laid out your reasons for using -NC licenses in THE COPYRIGHT THING:

“I like the fact that copyright lets me sell rights to my publishers and film studios and so on. It’s nice that they can’t just take my stuff without permission and get rich on it without cutting me in for a piece of the action.” link

The Creator Endorsed Mark effectively achieves the same thing, but without commercial monopolies. As you know, -NC licenses have some drawbacks: there’s no clear delineation between commercial and non-commercial use. You write,

“It’s just stupid to say that an elementary school classroom should have to talk to a lawyer at a giant global publisher before they put on a play based on one of my books.” link

It is stupid, but if the school raises any money to put on that play, or charges for tickets, or any number of other likely scenarios, then it’s commercial use of your work. You know it’s stupid, and I know it’s stupid, and maybe even some teachers and students know it’s stupid, but the school is obliged to obey the law, and the -NC license says they have to negotiate permission. If there’s a legal adviser at that school, they’re not going to allow the play without permission; and if asking for permission is too uncertain or labor-intensive (as it is in almost all cases – a lawyer may not know what an exception yours is), they won’t put on the play.

The Creator Endorsed Mark solves that problem. There is no commercial monopoly to infringe on. Big players – “publishers and film studios and so on” – need your Endorsement. If they cross you and your fans, they have a huge publicity problem; if they obtain your endorsement and cooperation, they sell more copies. The Creator Endorsed Mark increases the monetary value of distributed works, and is an essential investment for a distributor to make. But unlike a commercial monopoly, it doesn’t legally threaten or punish all those other players who are so crucial to a thriving cultural economy: schools putting on plays, other creatives building on the work, and otherwise unimaginable scenarios.

Some of the coolest things that happened to Sita Sings the Blues I couldn’t possibly have imagined, like this sculpture in India, this amazing every-frame-of-the-film poster, and this bicycle wheel video display, all of which are technically “commercial use” and would have been prohibited by an -NC license.

If any players want to go “big time,” the artist’s Endorsement will allow them to effectively compete in the market. Without an Endorsement, they won’t get far. And most of them aren’t planning to get that big anyway; they just want to sell some tickets to the school play, or some bike wheel LEDs.

The Creator Endorsed Mark solves other problems, by addressing the common (and incorrect) assumption that any use of a work implies its author’s endorsement. Widespread use of the mark could prevent such misunderstandings as the Jackson Browne vs. Ohio Republicans case. Browne was unfortunately trying to use copyright to suppress speech. Like it or not, the Republicans paid to license Browne’s “property” fair and square, through his assigned IP managers. Browne didn’t endorse the Republican party or McCain, but how was anyone to know that? Artists shouldn’t have to abuse copyright like Browne did. They can use the Creator Endorsed Mark instead.

Because I have no commercial monopoly on Sita Sings the Blues, all my contracts are Endorsement contracts. I have many contracts with many Endorsed distributors, just as I would had I negotiated “rights.” In fact, when a distributor wants to work with Sita, we just modify their rights agreement to be an Endorsement agreement. I get money, the distributor gets security, and everyone’s happy. As with rights, Endorsements can be exclusive or non-exclusive. Sita’s French distributor has my exclusive Endorsement for all French “territory,” just as they would have exclusive rights to an unfree film. I prefer non-exclusive Endorsements, and have many such deals with US distributors.

The more authors use the Creator Endorsed Mark, the more effective it will become. It will only become standard practice if we practice its standards. Hence this invitation, or plea. Won’t you consider releasing an upcoming project with the Creator Endorsed Mark in lieu of a commercial monopoly?



May 17, 2010
Hey, Nina! I’d love to talk with you about this in detail, but
mid-book-tour is too hectic for it! Can we bookmark this conversation
for a later date?

One gloss I’d put on this is that while “commercial” and “noncommercial”
are disputed terrain, a less-disputed (though by no means simple)
distinction is “industrial” and “nonindustrial.” For example, we
regulate (supposedly) the banks and require certain disclosures and
reporting of activities that have parallels in the “nonindustrial”
personal world, such as buying a lunch for a friend, loaning your son
money, or transferring money to your wife’s account. There is a scale at
which that activity ceases to be “personal” and becomes “industrial” and
there are zones on that curve in which reasonable people might disagree
about whether we’re talking about a bank, an investor, or just a friend.
Nevertheless, regulating banks is something I support.

Likewise, I support regulating the entertainment industry’s supply
chain. Copyright as presently or traditionally construed might be a
suboptimal rule-set for that industry (I think it’s historically tilted
to the favor of capital against the interests of labor), but that’s not
to say that there shouldn’t or can’t be a set of rules that govern that
industry to ensure fair dealing and to redress inherent power and
negotiation differences.

But let’s pick this up later — I’d love to dig into it with you when
I’m not doing 4 school stops, 5 interviews and a bookstore appearance
every day!



June 27, 2010
Hi Cory,

The distinctions between “commercial” and “non-commercial,” “industrial” and “non-industrial,” miss the point I think. The meaningful distinction is between MONOPOLISTIC and NON-MONOPOLISTIC (Open, Free, Libre, etc.). Monopolies on information damage culture, artists, audiences, and ultimately commerce as well.

When we met at your book signing last month, I recall you said that publications could enclose free works, even share-alike works, by republishing them alongside additional material under more restrictive licenses. If enforced, Share Alike licenses could restrict such enclosures, but that could cut off the authors from those publishing opportunities. You seemed to favor -NC licenses because they preserve opportunities for authors to be published within enclosed systems.

But how does maintaining commercial monopolies over works do anything to improve or solve the problem of monopolies on information? The scenario you describe assumes publishers will keep enclosing no matter what, so if you can’t beat ‘em, join ‘em. But the more works are Share-Alike/CopyLEFT (real copyleft, without commercial monopolies), the weaker enclosure systems become. If the problem is enclosure of works, -NC licenses are perpetuating it, not solving it. If we don’t copyLeft our works, publishers sure as hell won’t.

If getting money for the artist is the primary concern, the Creator Endorsed Mark should offer reassurance, as should my own experience. You said that my experience with Sita offers “only one data point,” but I think the entire Free Software Movement offers plenty more. As do true copyLeft books, like Karl Fogel’s. Karl’s copyLeft license sells more paper books, without the -NC restriction. (Also without even the CE Mark, which didn’t yet exist when his books were published; the kind of commercial competition so many authors fear is quite impractical in real life.)

I agree that industry needs some regulation. Primarily, government should step in to BREAK UP MONOPOLIES. Creating more state-backed monopolies is an inversion of how government should regulate industry. As long as we support commercial monopolies, expecting proper government regulation of industry will remain ridiculous, if not outright hypocritical.

I pointed out an SA license can prevent abusive exploitation as well as an -NC license. But importantly, it encourages all other exploitation; it is pro-commerce. -NC licenses come at a cultural cost. You said there’s very little enforcement of -NC works against many (minor?) commercial uses. But you can’t count the ways -NC works are NOT used, or considered for use, in worthy projects. I myself won’t work with -NC material, not only because of the unknown hassle of obtaining permission and the cost of licensing fees, but also because I won’t release my own work under a commercial (or any) monopoly. -NC licensed work is incompatible with genuinely Free work. It is, however, very compatible with an abusive monopolistic system which needs to change, one that authors are in a unique position to help change.


June 27, 2010
Here’s my perspective: the purpose of any cultural policy or regulation
should be to encourage a diversity of both participation and works (that
is: more people making art, and more kinds of art being made).

ISTM that your assertion amounts to: “Whatever forms of participation
that come into existence as a result of the capitalization opportunities
that accrue in an exclusive rights regime, they are dwarfed by the works
that lurk in potentia should such a regime perish.”

IOW: we unequivocally get *some* participation in culture as a result of
exclusive rights regimes, some of which would not exist except for
exclusive rights. You believe that if this regime and the works that
depend on it was to vanish, the new works that would come into existence
as a result would offset the losses.

I don’t know how either assertion could be tested. We both have
firsthand experience of both modes of creativity — I know of works that
wouldn’t have been capitalized absent the higher returns expected in the
presence of exclusive rights; I also know of works that could only have
been made in their absence.

But I don’t accept the argument that simply because monopolies are
always bad, their absence is always preferable. It’s clear to me that in
rival goods – say, my underwear — my monopoly is preferable to its
absence. I’m willing to stipulate, at least for the sake of
investigation, that some exclusive rights regimes in non-rival realms
produce better outcomes than their absence would produce.

I view exclusive rights as a purely utilitarian, instrumental question,
and one that’s admittedly hard to get right — the exclusive right
needed to get a complicated project made today is unlikely to be handed
back gracefully tomorrow when it is no longer needed because technology
has simplified the project.

But lots of policy questions are hard to get right; that shouldn’t
disqualify them from consideration for regulation (other rules that are
hard to get right include finance, building codes, zoning laws, child
protection, etc — I’m OK with the state having a go at them, though,
because I’ve seen that in the absence of rules, many of the outcomes are
very bad indeed).

Some economists have tried to answer the question as to what kind of
exclusive rights produce the best outcomes for which media. I confess I
don’t have the math to follow them (Rufus Pollock is one; I can’t give
an URL as I’m on a train with no network access ATM, but it’s
googlable). But I’m amenable to the idea that we can empirically answer
the questions:

At this moment in time:

* Which media

* Need which exclusive rights

* To produce the best outcomes?

Take Sita — could we have avoided the whole Sita problem, if, for
example, sync rights were nonexclusive? What if they were statutory, and
a fixed, minimal percentage of net income (an “economic right” instead
of a “moral right” in WIPO talk)?

One result of an instrumental view of exclusive rights is that they
should NEVER be retrospective — no one ever went back in time and
recorded an extra record because we gave her an extra 20 years copyright
on the works she was making back then. So at least in this regime, you’d
never have the Sita problem (I know that your concern is larger than
this, of course).

I confess that I don’t have any empirical reason to believe that “no
rights” produce worse outcomes than “some rights.” But intuitively, it
makes sense to me.

I think it makes sense to you too — you believe that limited exclusive
rights for the purpose of preventing fraud (trademark protection for the
CE mark) produces a better outcome than its absence. At least some
artists I know — Negativland, the Yes Men — rely on being able to
commit “fraud” as part of their art (and I like their art) and chafe at
this regime. Arguably, an enormous quantity of potential art dies in
utero because its creators are too afraid of a trademark lawsuit to go
ahead with it (trademark, as you know, doesn’t expire, enjoys no fair
use exemptions, and represents a major moral hazard in that it requires
that its users actively harass people who use the mark in a generic
fashion, even where the use isn’t a violation of trademark law!).

I’m sure we could construct a
consumer-protection/fair-competition/anti-fraud trademark-style regime
that allowed the Yes Men to pretend to represent Shell Oil without
allowing Shell Oil to pretend to be Nina Paley, but if you’re willing to
stipulate that *this* regulation can be fine-tuned to produce an outcome
you’re happy with, why not other kinds of exclusive rights?


Dear Cory,

I am quite dubious about exclusive rights = higher returns. Higher returns come from First Mover Advantage, making products available and affordable, and publicity, all of which can be achieved (often better achieved) without artificial monoplies. Sellers who meet their customers’ needs have nothing to fear from “pirates”; there is no incentive to compete against a product that is already available and of high quality. Furthermore, Creator Endorsement adds value to goods that are otherwise equal.

I don’t accept the argument that simply because monopolies are
always bad, their absence is always preferable. It’s clear to me that in
rival goods – say, my underwear — my monopoly is preferable to its

Ownership of scarce good != monopoly. You know this. I own my copies of Sita Sings the Blues. You own your copies of same. Neither of us have a monopoly on copies of Sita. To call ownership of tangible property “monopoly” is disingenuous. I am not against ownership of tangible property.

I view exclusive rights as a purely utilitarian, instrumental question,

I view them as a Civil Rights question.

and one that’s admittedly hard to get right –

Because they always violate Civil Rights

the exclusive right
needed to get a complicated project made today is unlikely to be handed
back gracefully tomorrow when it is no longer needed because technology
has simplified the project.

Indeed, Civil Rights are never “handed back gracefully,” as history shows us.

Some economists have tried to answer the question as to what kind of
exclusive rights produce the best outcomes for which media.

And some have answered in a sensible way: NONE.

What if they were statutory, and
a fixed, minimal percentage of net income (an “economic right” instead
of a “moral right” in WIPO talk)?

Culture is not a commodity. Furthermore, there are no “rights” in non-rivalrous goods. And now that I know what Freedom is, I’m not going back to the false ownership regime I accepted before.

I confess that I don’t have any empirical reason to believe that “no
rights” produce worse outcomes than “some rights.”

The “rights” you refer to are really restrictions, or “zero-sum rights”: they are always exactly balanced by the taking away of someone else’s rights. The more rights someone has to restrict their work, the fewer rights others have in their copies of that work.

The rights I am talking about are positive-sum rights. This is an important distinction that you gloss over when you compare “no rights” to “some rights” in your sentences above. I am also talking about rights – Civil Rights – the difference being that my rights are not also restrictions in exact proportion to their strength as rights.

But intuitively, it
makes sense to me.

Human brains are wired for a world of scarcity. In the digital age, copies of cultural works are abundant. Reality is changing faster than most peoples’ “intuition” can keep up. Abundance of food has exceeded human “intuition” about food scarcity, hence widespread obesity. Now is a good time to pay attention to the reality of abundance, not just what “intuitively makes sense.” My own intuition finally aligned with the reality of cultural abundance, but it took a lot of “suffering unto truth” for that to happen.

you believe that limited exclusive
rights for the purpose of preventing fraud (trademark protection for the
CE mark) produces a better outcome than its absence.

An identity is a scarce/rivalrous good. An identity is diluted by fraud, and in fact asymptotically approaches zero value to all parties (and thus to society) as fraud increases; whereas a copyrighted work’s value to society is not diluted by replication.

Trademark is lumped together by lawyers with patents and copyrights as “Intellectual Property,” but they are different. Of the three, only Trademark has any justification for its existence. Our Trademark system is corrupt and in need of reform, but it is not fundamentally bankrupt like Copyright, because Trademark addresses scarce goods, not infinite ones.

I’m sure we could construct a
consumer-protection/fair-competition/anti-fraud trademark-style regime
that allowed the Yes Men to pretend to represent Shell Oil without
allowing Shell Oil to pretend to be Nina Paley, but if you’re willing to
stipulate that *this* regulation can be fine-tuned to produce an outcome
you’re happy with, why not other kinds of exclusive rights?

1. Because Trademark is about scarce goods (identity) and Copyrights are about non-scarce goods.
2. Because I, like everyone, am opposed to fraud.
I support laws against fraud. I’m not confident Trademark is the best system. But whatever the shortcomings of Trademark, at least it is related to scarcity.



June 28
Well, I believe in civil rights, but I think that civil rights don’t
exist without policy underpinnings. The right to water, for example,
depends on policies related to fair aquifer management and many other
issues. Fair aquifer management involves some empirical questions and
some ideological questions, and the way you figure out whether you’ve
got the right policy is whether access to water is increasing or
decreasing across the largest number of people in the largest number of

Likewise, access to culture is a right, but it can’t exist without
underlying policies.*

(*How I failed to respond here, but should have: water is rivalrous, culture is non-rivalrous. Comparing culture to aquifiers is the whole problem. If you divert the river, my village doesn’t have water any more; if you copy my song, we both have it. This is a perfect example of why property rules can and should apply to rivalrous goods. Culture is not a rivalrous good. –NP)

June 28
Hi Cory,

I’m interrupting this argument to share an old comic about property:

More points coming soon.


June 28

June 28
Hi Cory,

I’m glad to read that your referring to your “rights as the copyright holder” is about something else. Since this started as my plea for you to try using the Creator Endorsed Mark instead of a commercial monopoly, maybe that outcome is still possible.

How can a monopoly inflate prices without
increasing returns?

By reducing or eliminating purchases. Look at the Big Media industry. The big media conglomerates have a monopoly on licensing rights to old music. They demand inflated fees to use it. They make no money from all the films that had to remove those songs, because their producers couldn’t pay the fees. They make no money from the films that can’t be released at all, nor the ones that never get made in the first place. The inflated prices don’t increase returns for industry, but they do grind progress to a halt, and stifle speech.

Projects with -NC licenses can easily make less money for similar reasons. If an author assigns their monopoly to a distributor who does a poor job, their work is seen less. Without commercial competition, many films are killed by their own distributors. Commercial monopolies are bad for commercial artists.

Some kinds of works are more apt to create social contracts than others.

The CE Mark is truth in labeling, which is detrimentally absent in current commerce. It also separates Endorsement from use, preventing tragedies like this latest from David Byrne.

What’s more, physical property ALSO requires policy to exist.

The best justification for property is that it is a mechanism to minimize disputes. Private (as opposed to personal) property rights are social rules to discourage fighting over scarce resources. I’m not saying this justification is accurate; from the cartoon I sent earlier, you know I also believe private property comes from “original violence.”

I don’t want to argue over physical property here. Whatever the problems of physical property, they are multiplied a hundredfold in imaginary property like copyright. Property policies should minimize disputes over scarce resources; IP creates disputes over infinite resources.

I think you mean “Not awarding ‘rights’ to nonrival
goods produces better outcomes than awarding rights.”

OK. Sort of like, “not shooting your neighbor produces better outcomes than shooting them.” Works for me.

We pretty much agree on Trademark, actually. I do think we need better anti-fraud mechanisms than Trademark. That’s all we’ve got in the current regime, so that’s what QCO is using for the CE Mark. If you have better ideas, please share.

And now please tell me why you choose commercial monopolies over Freedom and the CE Mark.



June 28
The reason I use words like “holder” and “rights” as opposed to
“property” and “owner” is because I reject the idea that copyright is
property, or that property metaphors are a good way to organize cultural

Copyright is purely a restriction on access to culture.

Well, rules about aquifers are restrictions on access to water, but
they’re also part of a sane strategy for water management.

But I don’t think copyright is “purely” a restriction. A “pure”
restriction would be one that exists absent any other goal — where the
restriction was the end, not the means. You might disagree about what
incentive it presents, but the formal basis for it is to provide an
incentive and we both know people who find that incentive compelling.

My argument is that some capital-intensive works that we can point to as
being good art and of having spurred a lot of cultural activity exist
because investors were confident in a period of exclusivity.

Certainly I know that Tor Books
puts less money into marketing and promo for PD titles it reprints than
it does for original works (and marketing and promo are two of the
seriously capital intensive parts of selling books). I don’t know of a
single publisher in the world who capitalizes the promotion of PD
reprints as much as in-copyright editions. I think that’s a pretty good
prima facie evidence that, industry wide, exclusive rights produce
contributions to creative endeavor that wouldn’t exist in their absence
(there’s nothing in the world that stops, say, Dover, from touring
scholars with new editions of PD titles, from buying end-caps and co-op
in major retailers, and from buying ads and paying for freebies and
events at ALA and BEA, but they never, ever have).

I couldn’t afford to personally capitalize the
publicity and marketing that Tor can front me, and that makes an
enormous difference in both the reach and the net income. No
self-promoted novel has ever been a NYT bestseller (or even an
Indiebound bestseller), and the income from those commercial attainments
has freed me to write more ambitious books than I could have written
while working my dayjob at EFF (which I was only able to quit when my
Tor royalties reached a certain threshold). For example, for my last
book, FOR THE WIN, I fronted about $20,000 in research expenses (travel,
transcription, etc), and took about seven months off to write it. I
certainly couldn’t have done that while working at EFF (I got three
weeks vacation/year there).

I agree that giving the recording industry really huge catalogs that go back
forever in order to allow them to milk the infinitesimal fraction that
they actually care about has been an artistic and policy disaster. But I
think that for the winners in the stilted, shitty market that this has
created, the profits have been enormous (partly because they get to shut
out all competition and monopolize distribution channels and so command
even more lopsided deals from creators).

June 30

Hi Cory,

Interesting. I now think of one work that doesn’t exist (yet) but would if a conventional copyright monopoly were available for it: A Sita Sings the Blues graphic novel. (I have no desire to produce such a work myself – if I did, it would exist, believe me.) 2 established publishers wanted to produce such a book, and were willing to hire writers to produce the adaptation, and designers to adapt the artwork, but only if I were willing to undermine the -SA license and grant them a monopoly over the result. I wasn’t willing, and the book(s) weren’t produced.

This is a business model issue. The publisher(s) could have made as much if not more money publishing a freely licensed book. It’s not the monopoly that’s the incentive, it’s “doing business the way we’ve always done it and the only way we can imagine doing it” that’s the incentive. That is very different from the monopoly itself being the incentive.

Money is a great incentive for publishers. Monopolies are not necessary to maximize money – you’ve already agreed that’s true in some cases. I want my publishers and distributors to maximize their revenue too, and I know this can happen without monopolies – again in some cases, like my case, and probably yours too. But the publishers don’t know that (and I can’t tell whether you do). I’m in an unfortunate position with book publishers: the ones that publish Free-licensed books are mostly in tech (O’Reilly), and the ones that do popular culture and art books are years away from even considering Free licenses.

So “adhering to a business model we’re used to” is being confused with monopoly itself, as an incentive for financing, creating and publishing certain works. The Creator Endorsed Mark is a great alternative to commercial monopolies, benefitting publishers, writers, and the public. But it’s new and different, and right now that is its greatest obstacle. You might consider that your books would benefit your Endorsed publishers just well with a CE Mark and a Free license, as with a commercial monopoly. But would your publishers consider that? And is it worth the trouble to you to try to persuade them?

I’m not going to argue here that Freedom + the CE mark would equal or increase revenues for all works. You’ve already acknowledged it would for some. I’m confident yours are the kind it would work for very well. So now I’d like to know whether 1) you agree with my estimation that your work could do just as well with a free license and CE mark as it does with a commercial monopoly, and 2) whether it’s worth your trouble to actually try it, which would involve persuading your publisher, which is a lot of work and may not succeed.



July 1
Hey, Nina! Well, like I said in the last volley: I don’t believe that my
books would reach the same scale of audience nor have the same impact
w/o Tor and it’s substantial marketing investment.

July 1
Right! I’m not suggesting you self-publish. I’m suggesting you ask Tor if they’d publish a book under a Free license and with your Creator Endorsement, giving them the exclusive (or however you negotiate it in your contract with them) privilege to display the Creator Endorsed Mark. The CE Mark is for publishers and distributors.


July 1
Actually, I *did* suggest something similar for the book I’m working on
ATM, Pirate Cinema, and both my agent and my editor told me I was nuts.
With neither of them behind it, there’s no chance I’d be able to sell it
to them…



So why did we bother with the whole argument? ;-)

The problem is not that commercial monopolies are beneficial, necessary or even useful. The problem is that publishers, editors, agents, distributors – “the industry” – are not willing to consider alternatives to business-as-usual. Except maybe O’Reilly. I like publishers, and recognize their value to authors, and wish more of them were as forward-thinking as O’Reilly. But just because they aren’t, doesn’t mean their reasoning is sound. We don’t have to defend monopolies just because the publishers we love still cling to them.

I like my own distributors much more because they don’t have a monopoly on my work. You are rather exceptional in that you have an excellent relationship with a publisher who is taking care of you. That may be more common in books than films, but it’s rare in any field.

When you suggested “something similar” to your agent and editor, did it include the Creator Endorsed Mark? Look how shiny and pretty it is:

If you want to try pushing your agent and editor again, we’ll support you. Please don’t give up!



July 1
Hey, Nina! Well, I didn’t talk abotu CE, but we did talk about the idea
of there being an official version and unofficial onces — even the
notion of just allowing commercial *translation* or *adaptation* and it
wasn’t a go.

Well, CE has the advantage of being simple, clear, already in use (I have the contracts to prove it!), and having an authoritative-looking mark.

You could point these things out to your editor/agent/publisher. I’m not saying you’d convince them, I’m saying it’s worth pushing the idea. That’s valuable in itself, regardless of the consequences. That’s why I’m arguing with you – not to convince you (although that would be nice), but to honor the principles I believe in by giving them a voice, which incrementally helps move them closer to reality.


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