... in creative commons

Using Creative Commons as a fig leaf

05 Jul 2009 | 2119 words | creative commons copyright business music

I have always had an unspecified strange feeling about Tribe of Noise. Tribe of Noise is an Amsterdam-based online music platform that allows musicians to upload and share their work as long as they agree to make it available under a Creative Commons Attribution ShareAlike license (CC-BY-SA). Simply put this license allows everybody to redistribute the songs on the platform, make remixes of them and redistribute these remixes under the same licensing terms. In all cases credit needs to be given to the original artist(s). It explicitly allows for commercial (re)use of the licensed works and it is one of the least restrictive Creative Commons licenses (and the license that has recently been chosen by a huge majority of wikipedia editors to apply to all text on wikipedia). I like this license.

I am writing this (rather long) text because I have come to the conclusion that the way Tribe of Noise uses this license is confusing to people contributing to the platform and can in the end be harmfull for the reputation of the Creative Commons Attribution ShareAlike license and the Creative Commons licensing model as a whole.

Even though i have endorsed Tribe of Noise back when it was launched (something i should have never done and which i am obviously retracting by writing this) the exclusive choice for the CC-BY-SA license made by Tribe of Noise never felt in line with the way the Tribe of Noise (TON) chooses to present itself: It is an aggressive start-up and the founder (and selfdeclared ‘Chief of Noise’) Hessel van Oorschot aggressively markets it as such. They have been quite successful in getting media attention and have known to attract a substantial number of artists to their platform (at the time of writing there are 5878 members). The platform is promoted to artists as a way to get in contact with commercial users of music.

I have met with Hessel on a number of times in the past and among others i have invited him to the ‘Filesharing: Up or Down?‘ discussion that i organized at de Balie in Amsterdam in the wake of the Pirate Bay trail and the publication of the Ups and Downs study on the economic impacts of file sharing. That evening Hessel explained that one of the components of the Tribe of Noise business model is to license (for a fee one assumes) the music repertoire posted to Tribe of Noise to video hosting services so that they can use it in services like youtube’s audio-swap or offer the music to video makers that are looking for copyright un-encumbered music tracks to use in their videos.

However, such a business model is rather difficult to carry out based on the rights granted by the CC-BY-SA license. One of the key features of this license is that it requires derivative works of the original works to be licensed under the CC-BY-SA license as well (the share alike mechanism). This means, that every time a work licensed under a BY-SA license is integrated into another work (or the other way around) the resulting work needs to be distributed under a the CC-BY-SA license as well. If a video maker uses a short snippet of CC-BY-SA licensed music in a (long) video that is otherwise completely made by herself she needs to release the entire video under the CC-BY-SA license or she is in breach of the license (and thus infringing on the copyright of the musician in question)1. This means that CC-BY-SA licensed music is pretty much useless for purposes like sound-swap unless the provider of the service intends to force the video makers to use a CC-BY-SA license themselves.

Given this Tribe of Noise probably has a hard time selling the repertoire uploaded to the platform to video hosting services (at least as as long as you assume that they would base these transactions on the CC-BY-SA licenses granted by their uploaders2.

Back in April i did not really notice this contradiction. Tribe of Noise came back to my attention two weeks ago when i read about a Creative Amsterdam Award they had won at the ‘Creative Company Conference‘ in Amsterdam:

[…] The runner up, Tribe of Noise, was also given an honorary mention for their brilliant concept of music library in which creative commons licence (sic!) could be used for commercial purposes.

The fluffy language in the conference summary triggered my interest. What exactly is so brilliant about Tribe of Noise’s concept? Given the characteristics of the CC-BY-SA license explained above i failed to see how there could be a ‘brilliant concept of music library in which Creative Commons license could be used for commercial licenses’. Sure there are three CC licenses that allow for commercial use of the licensed works but it is hardly brilliant to allow people to upload content to your platform under one of them.

Given the limitations of the Attribution Share Alike license outlined above, one is inclined to assume that there are other parts to the business model that allow it to function and looking at the terms of use of Tribe of Noise it quickly becomes apparent that the business model of Tribe of Noise is not based on the rights granted by the uploaders via the Creative Commons licenses. Instead it relies on a much broader (and much less advertised) non-exclusive license granted to Tribe of Noise. Section 9 of the ToN terms of use, that you have to accept when you open a tribe of noise account contains these two sub-clauses:

  1. Licenses Granted by the User

9.1 If you upload any content to Tribe of Noise or post any content on the Website, you grant:

  1. a worldwide, nonexclusive, royalty-free, transferable license (with the right to sublicense) to Tribe of Noise for the use, reproduction, distribution, demonstration, making available to the public and performance of, and creation of derivative works from, that content in relation to the provision of the Services, and otherwise in relation to providing the Website and in relation to Tribe of Noise’s business operations, including the promotion and further distribution of all or part of the Website (and works derived from the Website or part thereof), in whatever media-format and through whichever media channel, now known or hereinafter invented;
  2. andto every user of your work on the Website the following Creative Commons license: CC 3.0 By – Share Alike.

What is of interest here is the first of these two clauses. It essentially grants Tribe of Noise the (non-exclusive) right to do whatever they want with the uploaded music. For example they can sell (non-exclusive) licenses to third parties without having to pass on parts of the revenues generated to the musicians that have uploaded the music. Also Tribe of Noise can allow third parties to do whatever they please with the music that has been uploaded to the platform (without having to require them to give attribution or redistribute derivative works under a CC license). In short, by uploading a work to Tribe of Noise the artist grants Tribe of Noise a very broad license that allows them to commercially exploit the work while not getting any right of compensation in return3. In the same section of the terms of use the uploaders also grant all users of the Tribe of Noise platform the right to use the uploaded works under the Creative Commons Attribution ShareAlike license.

This dual license grant is nothing that is specific to Tribe of Noise. Almost all web platforms ask more rights in the content uploaded by their users than what uploaders are willing to grant to the general public (see for example the terms of use of youtube which are very similar to those of ToN). Some services (jamendo, blip.tv) specifically ask for the right to grant commercial licenses to third parties or run ads in connection with the content but in return they promise to share the revenues generated through such transactions with the uploaders, which Tribe of Noise does not do.

Having users agree with terms of service that include such an unbalanced license grant can hardly be called a ‘brilliant business concept’ and definitely has noting to do with ‘using a Creative Commons use for commercial use’: Looking at the Terms of Use of Tribe of Noise one has to conclude that using a Creative Commons license has nothing to do with subsequent commercial exploitation of the uploaded works by Tribe of Noise as the commercial exploitation is enabled by the parallel license grant to Tribe of Noise.

Even worse, i get the impression that Tribe of Noise uses the Creative Commons licenses in order to hide the fact that they are indeed trying to obtain a much wider license grant from the members of the platform. Apart from the above quoted section of the Terms of Use there is no mention of the additional license grant to Tribe of Noise on their website. Certainly not in the FAQ or the more info movie aimed at musicians (the two places where one would expect to find information about what rights are granted by simply uploading a work). Instead, in the video with more information for artists, Hessel van Oorschot states that they have solved a ‘legal challenge of sharing music with companies’ by using the CC-BY-SA license4:

[…] sharing music with other musicians and companies around the globe and getting more attention that is a legal challenge. But we came up with a solution so let me know how it is done on tribe of noise: Sharing music online even for commercial purposes is legal!! with help from legal advisors laywers (sic!) and creative commons!! Creative Commons Attribution Share Alike 3.0 Unported5.

Of course Tribe of Noise is free to ask their users for whatever license grants they want (and one could imagine that some artists do not object to give away the right to commercial use in exchange for exposure of their work on Tribe of Noise). However one would assume that a site that states ‘Tribe of Noise means music and respect!‘ openly informs its uploaders what rights they are granting to the platform in exchange for being allowed to upload a work to the platform. Hiding such information in the legalese of the Terms of Service does not really show respect for the musicians using the platform.

First of all this is objectionable because it relies on the lame old trick of hiding stuff in the Terms of Use that one has to click though during a registration process and then using a CC licenses in order to imply that the site does respect everybody’s rights. However, the conduct of Tribe of Noise is also objectionable on a more profound level as it shows that the team behind Tribe of Noise apparently thinks that it is ok for them to make commercial deals with works authored and performed by other people without reimbursing them for such uses. While writing this i have asked Hessel van Oorschot if Tribe of Noise has a revenue sharing model in place and he has responded that they will certainly start working on a honest sharing mechanism. If such a revenue sharing mechanism gets introduced to the platform in the future that is certainly a step in the right direction but it does not aliveate my other point that Tribe of Noise is far from transparent when it comes to dealing with the copyrights of the members of the platform.

  1. The cc licenses are quite specific about the use of music in combination with moving images. in section one of the licenses syncing of sound to moving image is explicitly defined to constitute a derivative work (and thus a trigger for the ShareAlike condition): ‘[…] For the avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this License.’ ↩︎

  2. Note that Tribe of Noise cannot sell licenses based on the CC-BY-SA license grant as none of the CC licenses allows for sublicensing. In theory ToN could be paid for curating, providing or making searchable of the content on the site but not for the CC license itself. ↩︎

  3. This license grant ceases to exist once an uploader terminates the relationship with Tribe of Noise (by cancelling his account). However section 12 of the Terms of use ensure that licenses granted by Tribe of Noise to third parties remain valid after the termination. ↩︎

  4. Transcription of the video at www.tribeofnoise.com/popup-make.php from 00:54 to 01:16 ↩︎

  5. And apparently that is how they pitch their service to clueless juries at Creative Company Conferences and similar events. ↩︎

Digitofagia: net_cultura 1.0

Yesterday evening i found an envelope copy of the book Digitofagia – net_cultura1.0 by Ricardo Rosas and Giseli Vasconcelos on the stairs to my apartment (thanks for the relay Geert!). This book has been in the making for more than 4 years and i had more or less accepted that i would never see it in print). The idea for this book cam up in the context of the Waag-Sarai Exchange platform in late 2004/early 2005. The book collects a number of articles and assays that discuss the – very lively – netculture/hactivism scene in Brazil at that time. It is the outcome of a number of discussions we had with people around the projects midiatactica and metareciclagem around that time.

Realizing this book was one of the more complicated things i have contributed to over time (transferring money to Brazil is a real nightmare) and when we were ready to go to print we learned that Ricardo who had spend an enormous amount of energy chasing authors and finding a publisher had passed away. The book was finally published late last year in Brazil (by Radical Livros) and although i cant read Portuguese i am happy that it is finally available:

The book is published under a Creative Commons Attribution Non-commercial Share alike license. A pdf version (missing a page in memory of Ricardo that was added later) can be downloaded here (the book cover here).

Steal this footage

The league of noble peers has just made available the raw footage of 19 interviews filmed for steal this film 2. the footage is not only available online but also fully text searchable based on the transcripts of the interviews:

Thanks to the magic of 0xdb and Pad.ma, plus the hard work of a number of Peers in transcribing STEAL THIS FILM II footage over the last six months, we are able to offer a full text search of the base material from which we made the film. If your search term is found, you are taken to the frame/s at which it occurs and given its immediate context. Try it out! You can also browse the whole list of clips, if you don’t know what you’re looking for in advance.

Even better, the entire material on footage.stealthisfilm.com is available in the original resolution (1080i HDV) and under a Creative Commons Attribution Share alike license. As far as i can tell, this is the first time such a comprehensive set of raw materials for a film has been made available under a open content license:

We are making this footage available in high quality format (HDV 1080i), having cleared permission from the interviewees to release it under an attribution share-alike license from Creative Commons. Practically this means that you can use this material for your own projects, including commercial work, provided you credit us and make your work available in turn under a share-alike license.

It will be interesting to see if this really works. my hunch is that there will be very few filmmakers who have use for these interviews (although most of them are quite informative if you are interested in the politics of information) and are willing or able to release films that incorporate footage from these interviews under a CC-BY-SA license themselves. Personally i would assume that it would be more useful/realistic to ask others using parts of the interviews to make available (parts of) their footage as well (instead of the finished film). This would be in line with how free software licenses operate: if you use freely licensed source code (footage) you have to make available the resulting source-code, but you can do whatever you want with the binary code (finished film).

Rright now that does not seem to be possible as it would be very hard to define which part of their footage downstream users should make available (and making all raw material available is pretty much impossible given the enormous amounts of bandwidth/discspace/work this would require). Given this the attribution share alike license does not seem that bad of a choice and of course filmmakers who, in exchange for using some of the STFII footage, do not want to make available their films under a BY-SA license can probably just pay jamie/the league of noble peers for separate permission…

Smells like communism

08 Mar 2008 | 14 words | creative commons copyright kennisland


02 Jul 2007 | 317 words | creative commons copyright photos

Couple of days ago i got this flickr mail from someone working for Tobacco International which describes itself as the ‘The authority on the tobacco industry since 1886’. The person wanted to know if he could use this picture of mine for ‘a profile on the tobacco industry of the middle east for our upcoming July/August issue’

I told him to go a ahead and use the picture and send me a copy of the mag if he did indeed do so. As a matter of fact the photo is cc-by licensed so he did not even need to ask me. Now today the same guy got back to me to thank me for my permission and went on to inquire:

By the way, we are looking for more photos for this story if you have any. We’re looking for photos from the Middle East of adults smoking cigarettes – with a smile if possible. They should be shots that are emblematic of the region – in dress or background that couldn’t come from anywhere else.

Guess he must have mistaken me for some kind of photo agency or something like this. Feed me a couple of orientalist stereotypes as keywords and see if i come up with more pictures. Now i happen to have at least one picture that more or less perfectly fits his request, but i do not think that i am selling (or giving away) pictures of friends of mine to promote smoking (note: the license does not allow for use in a commercial publication):

Not that i have anything against smoking or smokers, but if it comes to the middle east i definitely prefer smoking argile to cigarettes. Plus Nat reminded me that it would just be plain wrong to hand over that picture:

you have no god!!! AND aiding the tobacco industry AND aiding the perpetuation on monolithic stereotyped orientalist imagery?!??!!!

Favela Dubrovnik

So i am at my third summit in three weeks. first summit in Berlin, then the copyright summit in Bruxelles and finally the iSummit in Dubrovnik. Dubrovnik is absolutely amazing, which is best summed up by someone from FGV in rio de janeiro who’s first comment was. ‘whow! this place looks like a medieval favela‘ (which of course brings up fond memories from last years iSummit).

Photo by Joi Ito

Non-commercial definition

16 Sep 2006 | 96 words | berlin conference creative commons

Since i can remember Creative Commons has struggled with coming up with a clear-cut definition of what non commercial use means in the framework of the Creative Commons Licenses. the current attempt to clarify this issue has resulted in a set of non-commercial guidelines, which aim to introduce more clarity. i have the suspicion that the current version is way to complex for most people to understand, which is supported by evidence here at WOS4 in berlin:

Contrary to what this picture from the conference venue lavatories suggests, a voluntary tip-yar does not constitute commercial use.

From Beirut to ... those who love us

02 Aug 2006 | 122 words | film movies media lebanon war creative commons

Is a four minute or so short film produced on July 21, 2006 at the studios of Beirut DC, a film and cinema collective which runs the yearly Ayam Beirut Al Cinema’iya Film Festival. This video letter was produced in collaboration with Samidoun, a grassroots gathering of various organizations and individuals who were involved in relief and media efforts from the first day of the Israeli attack on Lebanon.

Click the image above to watch the movie or go to www.beirutletters.org to download it. The film is available under the terms of a Creative Commons Attribution-Noncommercial-No Derivative Works License, which means you are free to share or screen the movie as long as you credit the makers and do not re-edit it.

Shrinking cities

I am in Rio right now, which is anything else than a shrinking city. I have no figures ready but i guess there is a table which shows Rio’s growth in the last decades somewhere in Mike Davis’ excellent ‘Planet of Slums‘ which i finished reading just before coming here.

Now the lonely planet for Rio mentions that in Rio gas stations are one of the favorite places for party-goers to hang out as they sell beer all-through the night. This particular bit of travelers advice reminded me of one of the posters for the shrinking cities exhibition in Berlin a while back which showed an gas station that apparently served as the hang-out place for youngsters, supposedly because gas stations are the most exciting places to hang out in shrinking cities or something like this (I can’t find a single copy of the poster/image on the entire internets, but my sister has one hanging in her kitchen so go there if you do not know what i am talking about…).

Anyway, being in Rio we were of course looking for nocturnal excitement ourselves and the most exciting thing in town these days when it comes to going out are funk balls. The guardian has a fascinating article about the whole baile funk thing online (o.k. – if it has been in Guardian it is probably not the most exciting thing anymore for the locals but the whole thing still sounds quite exciting for visiting white boys). The only problem is that these funk balls take place in the Favelas and it does not seem like a good idea to venture out there in the middle of the night when you are drunk. However at some point we found some brazilians who had the same urge and took off to a ball in two cabs.

Of course being all slightly tipsy we did not really notice that it was 3A.M. and when we finally arrived at the venue the party was over and we did not get to dance at all (it was sunday night hence the early end). Instead we got some more drugs and gave some money to the 12 year old begging kid in an Osama bin Laden t-shirt (pictures of more OBL t-shirts here, here and here) and then descended from the hill to hang out at the gas station in shrinking city style:

p.s: Good thing to know that the USAF is giving $450K for ‘Automated Ontologically-Based Link Analysis of International Web Logs for the Timely Discovery of Relevant and Credible Information‘ – i wish them good luck making sense out of this post…

A2K make it happen

One of the strange things here at the iSummit 2006 in Rio de Janeiro are the excessive amounts of hotel staff that seem to have no other function than to stand around and smile. seems like that after 2 days of conference somebody finally found something more useful for them to do and made them attach ‘a2k – make it happen’ stickers to their dresses:

Aren’t they looking absolutely fabulous like this?

meanwhile... is the personal weblog of Paul Keller. I am currently policy director at Open Future and President of the COMMUNIA Association for the Public Domain. This weblog is largely inactive but contains an archive of posts (mixing both work and personal) going back to 2005.

I also maintain a collection of cards from African mediums (which is the reason for the domain name), a collection of photos on flickr and a website collecting my professional writings and appearances.

Other things that i have made online: