November 26, 2008  ·  Lessig

Chris Messina’s got a fantastic post about YouTube and Creative Commons. As it is CC licensed, I’ve reproduced it here:

Why YouTube should support Creative Commons now

YouTube should support Creative Commons

I was in Miami last week to meet with my fellow screeners from the Knight News Challenge and Jay Dedman and Ryanne Hodson, two vlogger friends whom I met through coworking, started talking about content licensing, specifically as related to President-Elect Barack Obama’s weekly address, which, if things go according to plan, will continue to be broadcast on YouTube.

The question came up: what license should Barack Obama use for his content? This, in turn, revealed a more fundamental question: why doesn’t YouTube let you pick a license for the work that you upload (and must, given the terms of the site, own the rights to in the first place)? And if this omission isn’t intentional (that is, no one decided against such a feature, it just hasn’t bubbled up in the priority queue yet), then what can be done to facilitate the adoption of Creative Commons on the site?

To date, few video sharing sites, save Blip.tv and Flickr (even if they only deal with long photos), have actually embraced Creative Commons to any appreciable degree. Ironically, of all sites, YouTube seems the most likely candidate to adopt Creative Commons, given its rampant remix and republish culture (a culture which continues to vex major movie studies and other fastidious copyright owners).

One might make the argument that, considering the history of illegally shared copyrighted material on YouTube, enabling Creative Commons would simply lead to people mislicensing work that they don’t own… but I think that’s a strawman argument that falls down in practice for a number of reasons:

  • First of all, all sites that enable the use of CC licenses offer the scheme as opt-in, defaulting to the traditional all rights reserved use of copyright. Enabling the choice of Creative Commons wouldn’t necessarily affect this default.
  • Second, unauthorized sharing of content or digital media under any license is still illegal, whether the relicensed work is licensed under Creative Commons or copyright.
  • Third, YouTube, and any other media sharing site, bears some responsibility for the content published on their site, and, regardless of license, reserves the right to remove any material that fails to comply completely with its Terms of Service.
  • Fourth, the choice of a Creative Commons license is usually a deliberate act (going back to my first point) intended to convey an intention. The value of this intention — specifically, to enable the lawful reuse and republishing of content or media by others without prior per-instance consent — is a net positive to the health of a social ecosystem insomuch as this choice enables a specific form of freedom: that is, the freedom to give away one’s work under certain, less-restrictive stipulations than the law allows, to aid in establishing a positive culture of sharing and creativity (as we’ve seen on , SoundCloud and CC Mixter).

Preventing people from choosing a more liberal license conceivably restricts expression, insomuch as it restricts an “efficient, content-enriching value chain” from forming within a legal framework. Or, because all material is currently licensed under the most restrictive regime on YouTube, every re-use of a portion of media must therefore be licensed on a per-instance basis, considerably impeding the legal reuse of other people’s work.

Now, I want to point out something interesting here… as specifically related to both this moment in time and about government ownership of media. A recently released report from the GAO on Energy Efficiency carried with it the following statement on copyright:

This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.

Though it can’t simply put this work into the public domain because of the potential copyrighted materials embedded therein, this statement is about as close as you can get for an assembled work produced by the government.

Now consider that Obama’s weekly “radio address” is self-contained media, not contingent upon the use or reuse of any other copyrighted work. It bears considering what license (if any) should apply (keeping in mind that the government is funded by tax-payer dollars). If not the public domain, under what license should Obama’s weekly addresses be shared? Certainly not all rights reserved! — unfortunately, YouTube offers no other option and thus, regardless of what Obama or the Change.gov folks would prefer, they’re stuck with a single, monolithic licensing scheme.

Interestingly, Google, YouTube’s owner, has supported Creative Commons in the past, notably with their collaboration with Radiohead on the House of Cards open source initiative and with the licensing of the Summer of Code documentation (Yahoo has a similar project with Flickr’s hosting of the Library of Congress’ photo archive under a liberal license).

I think that it’s critical for YouTube to adopt the Creative Commons licensing scheme now, as Barack Obama begins to use the site for his weekly address, because of the powerful signal it would send, in the context of what I imagine will be a steady increase and importance of the use of social media and web video by government agencies.

Don Norman recently wrote an essay on the importance of social signifiers, and I think it underscores my point as to why this issue is pressing now. In contrast to the popular concept of “affordances” in design and design thinking, Norman writes:

A “signifier” is some sort of indicator, some signal in the physical or social world that can be interpreted meaningfully. Signifiers signify critical information, even if the signifier itself is an accidental byproduct of the world. Social signifiers are those that are relevant to social usages. Some social indicators simply are the unintended but informative result of the behavior of others. . . . I call any physically perceivable cue a signifier, whether it is incidental or deliberate. A social signifier is one that is either created or interpreted by people or society, signifying social activity or appropriate social behavior.

The “appropriate social behavior”, or behavior that I think Obama should model in his weekly podcasts is that of open and free licensing, introducing the world of YouTube viewers to an alternative form of licensing, that would enable them to better understand and signal to others their intent and desire to share, and to have their creative works reused, without the need to ask for permission first.

For Obama media to be offered under a CC license (with the licensed embedded in the media itself) would signal his seriousness about embracing openness, transparency and the nature of discourse on the web. It would also signify a shift towards the type of collaboration typified by Web 2.0 social sites, enabling a modern dialectic relationship between the citizenry and its government.

I believe that now is the time for this change to happen, and for YouTube to prioritize the choice of Creative Commons licensing for the entire YouTube community.

  • Jardinero1

    Do help me with this vexing question about Creative Commons. How does CC handle the issue of fraud?

    What happens when a prankster or vandal takes something not CC licensed and then republishes it fraudulently with a CC license? Or conversely, what if I do publish my own work with a CC license but then get cold feet and I say that some vandal did that, not me, demand the full protection of US Copyright law and then start issuing takedown notices? This strikes me as a huge problem with the CC regime.

  • http://blog.sandipb.net Sandip Bhattacharya

    > First of all, all sites that enable the use of CC licenses offer the scheme as opt-in,
    > defaulting to the traditional all rights reserved use of copyright. Enabling the choice
    > of Creative Commons wouldn’t necessarily affect this default.

    … and all sites which do *not* enable CC licensing (like youtube), require that you own the copyright of whatever you are publishing. So if it is not the publisher’s own content in the first place, it doesn’t matter which licence is there anyway. It is mislicenced whatever way you look at it.

    > What happens when a prankster or vandal takes something not CC
    > licensed and then republishes it fraudulently with a CC license? Or
    > conversely, what if I do publish my own work with a CC license
    > but then get cold feet and I say that some vandal did that, not me,
    > demand the full protection of US Copyright law and then start issuing
    > takedown notices? This strikes me as a huge problem with the CC regime.

    Replace “CC” with any other licence in your scenario there, and the problem is still the same. This is not a CC specific issue.

    The only CC-specific point to remember is that you cannot revoke a licence retroactively. If you change your licence, you cannot make people using your previously licenced content to follow the new rules.

  • http://sethf.com/ Seth Finkelstein

    Regarding:

    1) “why doesn’t YouTube let you pick a license for the work that you upload”

    While an interesting question, I suspect the answer to that is in the copyright thinking of the YouTube lawyers, and that they won’t be willing to discuss it. At least not frankly.

    2) “what license should Barack Obama use for his content?”

    Why is this even a question? Doesn’t copyright law say all his government-related actions, such as his official speeches, are in the public domain?

  • http://public.resource.org/ Carl Malamud

    Allow me to go on a slight tangent on a pet peeve of mine. Speaking of the GAO disclaimer:

    > Though it can’t simply put this work into the public domain
    > because of the potential copyrighted materials embedded
    > therein, this statement is about as close as you can get for
    > an assembled work produced by the government.

    I flipped through the report in question and saw no indication of copyright material contained therein. But, the disclaimer reads “however, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.” I find that really muddies the waters. Government should simply leave that disclaimer off by default and only put it back on when there is something to protect, and should then be specific.

    An affirmation of public domain status by the government is much stronger than requiring each end user to make the determination on a case-by-case basis. Not having those affirmations has been one of the things holding down scanning and digitization of government information because librarians (such as Google or the Internet Archive) have to take the responsibility for determining what is and isn’t a true work of government.

  • Jardinero1

    Sandip,

    No, this problem is unique to CC and opt-in regimes only. Under US Copyright law, the default regime, whatever I create is mine, subject to fair use. CC is entirely optional and, as far as I know, there is no audit mechanism for the assignment of a CC license. Anyone can paste a CC license on my work and fraudulently give it a looser copyright. No one can fraudulently assign my work the normal copyright protection afforded under US law; it’s automatically there for me.

    You say, “The only CC-specific point to remember is that you cannot revoke a license retroactively.” That’s ok for honest people but I am talking about fraud. If I decide to take back my CC license, all I have to say it that some vandal stole my work and assigned a CC license to it fraudulently. If this hasn’t happened yet, I believe it will.

    This is a big gap that has to be filled.

  • http://napsterization.org/stories Mary Hodder

    Since I’ve been tracking Youtube’s TOUs (May 2005) they have always had this paragraph in their user submission area (currently Section 6).

    The May 2007 license said this:
    However, by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.

    But the current section 6, part C says this:
    C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.
    ……….

    It’s an interesting thing, as it is a commercial reuse license, in my interpretation, given to Youtube and the greater community, as long as the submitter of the work owns the copyright to the work. The earlier license allowed for remixing by other users, however, but the newer license is less liberal in that direction.

    YT does not allow users to submit more granular control over this licensing as CC licenses would, but from a reuse standpoint, its the most liberal thing out there that I know of on an upload site such as YT.

    In March 2006 I talked with Steve Chen and their head of marketing at the time about their commercial reuse license and asked why they didn’t consider using Creative Commons. They both didn’t seem very open to the idea. However, time has passed, and they might be willing to reconsider.

    mary

  • George

    Frankly, who gives a sh*t about Utube? Is that platform God or what? There’s absolutely no lock-in – you can upload your video wherever you want and people can view your video wherever they want, they simply need to click on a URL.

    Hence, just use another platform that offers the features you like, be it better quality than the sh*tty Utube quality or be it CC rights by default.

    Done, problem solved. Next!

  • http://dangillmor.com Dan Gillmor

    With regard to Obama’s weekly messages, won’t this be moot when he takes the oath of office? Isn’t anything created by the federal government free of copyright in any case?

    Even if so that doesn’t address the bigger issue — YouTube’s refusal to even make CC an option. I’ve also had conversations about this with people there and gotten the same “we’ll take that under consideration” non-answers. It’s one reason why I advise people to use services like Blip.

    Too bad Obama’s folks don’t do the obvious thing and post that weekly chat to other services — including the ones that support CC.

  • Erubey

    I’m a big fan of all your work but I still haven’t decided if I’m an “abolitionist” or a “reformer.” I just read this blog and decided to take matters into my own hands (At least with my own work). I’m an amateur singer-songwriter (amateur in both senses of the word, I’m not very good, and I do it for the love. There genre is Mexican-folk music with progressive liberal lyrics). I post original work on youtube and also some remix work. As you know, Youtube has added the “annotations” functionality. I used that space to write “Creative Commons Attribution-Noncommercial-Share” on some of my videos. I wanted to add the cool CC logo but I couldnt paste and copy the logo into it.

    I just graduated from UCLAW, but obviously you’re the legal expert here, my question is: Is that enough? TED videos also have the CC logo in the beginning. As long as President Elect Obama writes “CC” or “public domain” (either like TED does it or using the annotations functions like me) on the weekly addresses, wouldn’t that be enough?

    The link to what I did is this: http://www.youtube.com/watch?v=CMZLTJZ5VGc. I wanted to add the cool CC logo but I wouldnt past and copy the logo into it.

  • Erubey

    I’m a big fan of all your work but I still haven’t decided if I’m an “abolitionist” or a “reformer.” I just read this blog and decided to take matters into my own hands (At least with my own work). I’m an amateur singer-songwriter (amateur in both senses of the word, I’m not very good, and I do it for the love. There genre is Mexican-folk music with progressive liberal lyrics). I post original work on youtube and also some remix work. As you know, Youtube has added the “annotations” functionality. I used that space to write “Creative Commons Attribution-Noncommercial-Share” on some of my videos. I wanted to add the cool CC logo but I couldnt paste and copy the logo into it.

    I just graduated from UCLAW, but obviously you’re the legal expert here, my question is: Is that enough? TED videos also have the CC logo in the beginning. As long as President Elect Obama writes “CC” or “public domain” (either like TED does it or using the annotations functions like me) on the weekly addresses, wouldn’t that be enough?

    The link to what I did is this: http://www.youtube.com/watch?v=CMZLTJZ5VGc. I wanted to add the cool CC logo but I wouldnt past and copy the logo into it.

  • http://factoryjoe.com Chris Messina

    Thanks for reposting my entry, Larry.

    Some of the comment responses have been interesting — especially Mary’s, which suggests that work on YouTube is already licensed under a fairly permissive license.

    I took a harder look at YouTube and the only hint about licensing is in the footer, where there’s a copyright notice that reads “© 2008 YouTube, LLC”. I presume this applies to the design of the site and not the content, but it’s a slim distinction since again, there is no explicit mention about the license of the individual works, whether under the “YouTube License” or some other scheme.

    To my point, the reason why I think it would be useful for YouTube to embrace the CC licensing scheme is because of the signal it would send to people — hopefully to help them think more critically about licensing and reuse permissions, and to be more aware of alternative permissive-licensing options.

    It is true that government works *performed by the government* (again, contractor work is harder to generalize about) are in the public domain, but as Carl pointed out, the noncopyright disclaimer acts as a chilling effect, making people worry about whether they can or cannot use something, and then, likely, will choose not to out of fear.

    If the Obama administration took a progressive stance on demarking works as in the public domain, I think that would be a great service to the burgeoning remix culture. If it went further and requested that YouTube make it plain what the license of its videos were, I think that would also serve the interests of the CC community.

    It’s hard to say whether YouTube will seize the opportunity this time, but indeed I hope they do.

  • http://pterandon.blogspot.com Greg M. Johnson

    No, you’ve got it wrong. All content on Youtube, whom you’re griping about, is under a de-facto cc-by license. (IANAL). Flickr, whom you praise, has retreated from its original fair use model to one where it allows anyone to gripe about the use of the “Blog This!” button on every photo. On flickr, posting to a “blog with ads” is unauthorized commercial exploitation. On youtube, you’re supposed to blog the material.

    Why don’t you write about this. (Or study the actual cultural landscape a bit more).

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