why public domain and not creative commons?

by Hugh

All LibriVox recordings are in the public domain, and the question comes up often enough: why not license the recordings as creative commons/non-commercial instead? The question came up recently and here was my answer:

So, why should LibriVox recordings be in the public domain, rather than a creative commons license?

LibriVox comes out of a number of ideas: the idealism and pragmatic successes of the free software movement, the collaborative methodology (and “it needn’t be perfect to be useful”) of Wikipedia, Lessig’s defense of the commons, and the alternative licensing of Creative Commons works, the podcasting platform which democratized distribution of media, the astoundingly useful work of project Gutenberg, that has been toiling away since 1971 making public domain texts available to anyone for free, and finally Brewster Kahle’s Internet Archive and the vision of universal access to all human knowledge.

One of the important ideas behind LibriVox was this: a vibrant public domain is essential for a healthy society, and is essential for innovation – which I think can also be expressed as: “finding solutions to problems.” Having a wide and vibrant public domain – of ideas, texts, learning, science, open source code, audio recordings, art etc. – means that as we face problems of one kind or another, we have at our disposal a whole host of tools and information and building blocks that will help us find solutions. We’ve seen in the past few decades, however, a move against this idea of public intellectual space – broadly the the movement towards protection of “intellectual property.” We’ve seen this across all sectors of society, from how universities treat their scientific research, to patenting of life, patents on processes, the abusive and self-destructive suing of fans by music companies and Hollywood. I oppose much of this stuff on a number of grounds: one is a moral objection to the greed of companies who wish to extend their ownership beyond where it had ever been imagined previously. The other objection is more pragmatic: that allowing companies to do this will stifle innovation, and in the long run will be very damaging to our societies.

So LibriVox – besides being a project about making audiobooks – was originally conceived of as a small bulwark in a larger moral, intellectual and political battle around the value of the “public domain” broadly defined. And part of that defense is this idea that people can and will and should build on the public domain to make new things and provide new more innovative solutions to problems. LibriVox would make the audio recordings, make them available, and the hope has always been that others would find great things to do with them. The Ebay cottage industry, which annoys some people, is a good example: we have not figured out how to provide CDs of recordings to people, yet people want them. It would take more work and organization, and it would be nice if we could do that for free. But we can’t, or have not been able to. So these other people download our files, burn CDs and sell them to people who want them. The end result is that more people get to listen to (inexpensive) public domain literature they wish to listen to (and wish to pay for), some ebayers have some added revenue generated from spreading great literature throughout the world, maybe more people hear about LibriVox (but maybe not). Some people see that as a problem, but I certainly don’t.

But I hope people will come up with even more useful things to do with LibriVox recordings, and if they are commercial, I just can’t see any problem with that. The “thing” that they will be doing may be using LV recordings, but it certainly won’t be replicating what LV does already. They will be doing something new and hopefully interesting, probably educationally useful, and even if it IS nike selling sneakers with Gord’s recording of Walden, well, at least more people might get turned on to Walden (though I assure you Nike can afford to hire someone to record a chunk of Walden).

So the question around licensing became this: do we want to limit how people use LibriVox recordings? What is *wrong* with commercial uses? As long as the audio remains accessible, and free for all to use forever, then I saw no reason why we should limit anything – limiting would just mean that in the scheme of things, fewer people would listen to the recordings we have made. And in my calculus of the universe, that’s a bad thing: I think the universe will be a better place the more people listen to LibriVox recordings.

But beyond that sort of pragmatic thinking, there is a wider philosophical question about ownership, control, and the act of truly giving something away. I think Creative Commons is a wonderful tool, and it changed the way I thought about art. But it maintains this idea: I own this work and you may do with it just what I say you may do. Now that’s fine: I license, for instance, my personal blog writing like this. But LibriVox is more radical. LibriVox says: we make these recordings, and we give them away, no strings attached. Use them as you like: you don’t have to ask permission or tell us about it, or do anything, just use them as you like. They are yours as much as they are ours now. We have gifted them to the universe.

That’s a pretty radical idea, far more radical than CC which says: here are the terms under which I allow you to use my work.

It’s radical and it’s liberating as well, because in some sense one’s ownership of things is a two way street, and the things you own in some sense own you too – ownership means you have certain responsibilities to that thing, including monitoring how other people use it. Breaking that ownership bond is a powerful sort of experiment.

There are of course some very important pragmatic reasons for a public domain license rather than creative commons: public domain means we just don’t have to worry about it. We don’t have to chase anyone, or ask for checks or tell them they can’t use such and such to do so and so, we don’t have to hire lawyers and sue our fans or anyone else. The files are there for all to use, and all we have to do is concern ourselves with our objective, which is:

To make all books in the public domain available, for free, in audio format on the internet.

Along those lines, we didn’t want anyone to ever have to question which LibriVox license a certain audio falls under. It’s all the same, all public domain, and anyone can use it for whatever they like. Period. Answering questions is easy. Having multiple licenses would have made that a headache for people, including us.

There is one final very important point, which I had not really thought about until Michael Hart of Gutenberg told me about it recently. US copyright law has extended and extended again the term of copyright, currently 95 years after publication date. This means that nothing has gone into the public in a very long time. And if copyright law-making continues on like this, there will be another extension when the next batch of public domain stuff is currently scheduled to click over. So, possibly, nothing new will ever go into the public domain again.

In the old days, there was about a 50-50 split: 50% of texts were in the public domain, 50% under copyright. Every year more and more texts came into being, but a whole swath of things went into the public domain, and the ratio kept more or less the same. That was a healthy for society because people had much easier access to those texts that went into the public domain.

That’s not happening anymore. So the public domain is shrinking as a ratio of available knowledge.

Which brings another point: Creative Commons does not, in fact, make any contribution to the public domain, because the term of Creative Commons licenses is the same as for copyright (i think, that is: 95 years after publication). So Creative Commons in fact does NOTHING to protect or enhance the public domain – it only creates a new class of copyright protection that is much more liberal than previous incarnations.

So LibriVox is a small beacon of light in this policy question, slowly adding to the public domain while all around the public domain is shrinking. This is important in some broad sense beyond anything particular we do at LibriVox. At least I think it is.

Having said all that, I understand why some people don’t want their recordings in the public domain. But that’s fine, there are many other places to put audio up on the web. People don’t need LirbiVox to add recordings to the web. We represent just one little corner of the audio world. Our corner is this: we make free public domain audio versions of public domain texts. If people want to help (many have) that’s great. If they don’t, then that’s OK too, there’s no reason people ought to be forced to make public domain recordings …

But that’s what LibriVox is for, making public domain audio recordings, and giving them away to the world.