Creative Commons licenses have a totemic status within the free culture movement. Always controversial, yet used for tens of millions of web-based creative works, they have helped bring the ideas of the free software movement to entirely new audiences. But they have also had an uneasy relationship with certain free software communities, in particular the Debian project's legal team. Now, with the drafting of version 3.0 of the generic licenses, issues such as these are being aired. What does the future hold for the world's most popular free content licenses?

The first Creative Commons licenses were released in December 2002. Since then there have been various sweeping changes, most notably when they reduced the number of licenses from 12 to 6. But this is the first time that such big issues as Digital Rights Management, trademarks and proper attribution have been openly discussed, raising complex questions about strategy and ethics.

There are a few less exciting changes being discussed, but that are important to mention. The first is that they are spinning off the current "generic" license, which national legal teams then port to their jurisdiction, into a US license. A new, genuinely generic license has been written based on the language of international so-called intellectual property (IP) treaties. This is mostly for the benefit of lawyers, but it is also a symbolic gesture of internationalisation, away from the very American image of the organisation.

Two minor changes require that you "clearly mark" any derivatives as such, so that nobody confuses them with an original, and that attribution doesn't constitute an endorsement by the original creator. These help harmonise the licenses with the largely European doctrine of "moral rights", which guarantees amongst other things the integrity of creators. Creative Commons profess to be the Ubuntu of the free culture world -- for humans, with lawyer-code behind the scenes -- so it's important that the licenses match our basic, layman expectations.

But the really juicy stuff is found in the ongoing battle between Creative Commons and Debian, the GNU/Linux and GNU/HURD distribution community. As is their way, the Debian legal team decided that Creative Commons licenses were insufficiently free, and laid out a number of problems with all of the licenses (even the "Attribution Share-Alike" license, which in many ways is equivalent to the GPL).

Three of their four qualms have been dealt with. Attribution is more clear, the restrictions on the use of the "Creative Commons" trademark are no longer so strict, and creators can no longer request that downstream distributors remove all references to him or herself. Each of these would either have violated their Free Software Guidelines, or put undue pressure on the project.

For example, they were worried that the attribution clause present in all Creative Commons licenses would require them to put her name in a large number of places, clearly evident, unlike software authors whose credits may appear in documentation, README files, "about this program" boxes, in source code headers or other obscure locations. Electronica musicians had similar worries, since a typical CD can contain tens of thousands of samples, so attributing each source in the sleeve notes would be an unweildy requirement. Hopefully "reasonable" attribution will satisfy the "at a minumum" requirement in the new licenses.

But Digital Rights Management (DRM), a thorn in the side of the free culture movement, has caused the most friction with Debian. DRM is a loose term that describes just about any technology used to protect content. The main use is to lock people out from copyrighted works, whether because they haven't bought a license or because the content industry simply decides there are arbitrary reasons to exclude you. An early example was the region encoded DVD, quickly followed by copy protected CDs and password protected electronic books.

Debian were unhappy about an anti-DRM clause inserted into all Creative Commons licenses, which forbade the use of technological measures that restrict the user. The problem was that "technological measures" is a vague term, and might cover legitimate practices such as sending GPG-encrypted data, or putting a Debian mirror behind a firewall to limit access to local users. With no legal precedent it's an open question as to whether these practices would violate the anti-DRM clause, but the Debian project doesn't like to take chances.

The proposed solution -- dual distribution -- would allow the use of restrictive technologies so long as the otherwise-identical content was
also distributed unrestricted. So long as unrestricted access to Debian mirrors remains available, mirrors behind firewalls and password-protected systems would be acceptable.

This solution effectively neuters DRM, which must then serve a useful purpose beyond simply protecting creators "rights" to totally control their work. Otherwise people will go straight to the unencumbered content. But many of the legal Project Leads, who port Creative Commons to their own jurisdictions, felt that this didn't send out a sufficiently clear anti-DRM message. At the iCommons summit in Rio de Janeiro, delegates decided to draft a strong anti-DRM statement, in a clear sign that many want the free culture movement to get more political on the issue.

So it comes to a tricky question of strategy and ethics. Is it better to allow people to use and distribute content on DRM-encumbered devices and software? Or should we make it illegal, thus clearly opposing this dangerous trend towards locking down culture? Debian has persuasively argued that it would be a strategic blunder to prevent people using free content on, for example, their Playstation 2 or their iPod (both DRM platforms), when we could require that the content they use and create still be made freely available. Not only that, but it would violate their Free Software Guidelines, which forbid discrimination against particular fields of endeabour.

I'd speculate that the reason behind the lawyers' reluctance is simple: they want to tackle the issue in a domain they understand -- law -- rather than making their licenses agnostic, which would force the free culture movement to tackle DRM through politics. Of course politics is the most effective way for us to attack the trend, using the proliferation of free content and the dual-distribution clause to back up our arguments against the insiduous threat. But so long as there are doubts about this approach, and about the clarity of any dual distribution clause, it seems that Debian and Creative Commons will remain locked in a symbolic struggle to define "free culture" through legal tools.

The Free Software Foundation launched an anti-DRM campaign called "Defective by Design" earlier this year, running online petitions and picketing industry shows. Local free culture groups in the US, France, UK and doubtless elsewhere have staged protests and lobbied politicians. Creative Commons licnensors can undoubtedly help the effort, both by continuing to boycott the use of DRM themselves and by backing political groups who fight the good fight. But using licenses to directly harm people's ability to use DRM is a risky tactic.

The discussions between Debian and Creative Commons raise a further troubling issue, that of transparency. With tens of millions of Creative Commons works indexed by Google and Yahoo, the organisation has an obvious responsibility to solicit input and be open about the changes it is making to the licenses. Thankfully they take this responsibility very seriously, announcing drafts and consultation periods on their weblog and community mailing lists. But many of these discussions happen in private, and nobody has yet been proactive in explaining the arguments to the wider public.

A consequence of this is that many controversial issues haven't yet been thoroughly discussed, or at least not prominently in the public sphere. Even DRM, the hot topic of this round of drafting, didn't receive the attention it deserves. A broad debate, including consumer rights groups, anti-DRM lobbying organisations and the wider free culture community should be chewing over the arguments that shape the Creative Commons licenses. Alas, whilst the debate is widening, we are far from that utopia today.

DRM, attribution and the trademark clause were all concerns of Debian, a highly organised community with a dedicated legal team, and so they were inevitably raised and eventually made public. But what about the widespread confusion and uncertainty surrounding the commercial use clauses?

Mia Garlick, Creative Commons' General Counsel, released an advisory note last year indicating just how expansive the clause is. For example, putting Google Ads on your web site to cover hosting costs (without coming close to making a profit) constitutes a commercial activity. Non-commercial licenses are easily the most popular choice, especially amongst record labels and other businesses, who see it as a way of protecting their business model without punishing fans who like to share. But do they all agree with the definition of "commercial use" indicated by Garlick's document?

Those who grumble about the way the the Free Software Foundation has drafted the third version of the GPL should take note. The FSF have worked hard to seek input from the wider community, even to the extent of collecting comments on a web site and providing diffs between drafts.

With the growth of the iCommons organisation -- a potential hub for the free culture community -- and the increasing internationalisation of the Creative Commons licenses, we have good reason to hope that things will continue to improve. But we shouldn't just sit at the margins and wait for the lawyers to include us. The debate about DRM and licensing strategies shows that we all need to participate and ensure that licenses are drafted with our opinions in mind, so that the "big picture" is considered and licenses remain tools for creators, not replacements for lobbying or protest.

This article was published in issue 66 of Linux User & Developer.