Burningbird

It was a sense of inevitability that I read about the lawsuit against Creative Commons and Virgin Mobile, Australia. The suit came about because of the recent Virgin Mobile use of photos licensed for commercial use via a CC license.

Not surprising to read Lawrence Lessig's optimistic look at the issue, though his segue going from a thoughtful look at where things went wrong to "everything worked as planned" is a rather interesting read:

this case does again highlight the free culture function of the Noncommercial term in the CC license. Many from the free software community would prefer culture be licensed as freely as free software — enabling both commercial and noncommercial use, subject (at least sometimes) to a copyleft requirement. My view is that if authors so choose, then more power to them.

But this case shows something about why that objective is not as simple as it seems. I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes "commercial use"), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community.

The Noncommercial license tries to match these expectations. It tries to authorize sharing and reuse — not within a commercial economy, but within a sharing economy. It tries to do so in a way that wouldn't trigger at least most non-copyright rights (though again, most is not all — a CC BY-NC licensed photograph by a voyeur still violates rights of privacy, for example). And it tries to do so in a way that protects the copyright owner against presumptions about the waiver of his rights suggested by posting a work freely.

I began to write on my concerns about Creative Commons, as soon as they were released. Years ago, in response to a comment by Sam Ruby, I wrote about the potential problems for confusion associated with the CC licenses:

Sam, in the legal world there is no 'seed' planting. There is clarification or confusion.

Not all forward motion is positive. I'd rather see people hesitate on using the CCL, and the CC open a dialog with the community (through a weblog with comments or a discussion group or like), then to continue using the CCL, perhaps incorrectly, all based on wonderful sounding words and a cute movie.

I appreciate the nobility of the Creative Commons intent and effort. But I'd appreciate it more if they combined that with an interactive element that allows us all to understand better what it all means.

I guess we have a better idea of what it all means now. But I wrote that over five years ago.

In response to this issue, Suw Charman wrote:

I like to think that the world is based on goodwill. People are, generally speaking, nice and, by default, they will respect and help others. Certainly humans are fundamentally and inescapably social creatures that need each other on a minute-by-minute and day-to-day basis, and I think that being nice is one of the attributes that which fuels the reciprocation that makes helping someone else ultimately worth it for us ourselves.

I also think that the social web is an expression of the niceness that lubricates society. All the mores that have built up around blogging and wikis and sharing and Creative Commons are based on being nice: if you quote someone’s blog, it’s being nice to credit them; Wikipedia encourages everyone to be nice to newbies; sharing anything with strangers is an act of niceness in itself; and Creative Commons licences are predicated on the idea that people will be nice and respect them.

Whilst niceness isn’t universal - there are people who aren’t nice - it is a desirable attribute, so much so that niceness is taught and enforced from birth. I doubt there’s anyone reading this who wasn’t told as a child to “be nice” or to “play nicely”. Nice is good. We need nice.

This might explain why I get so cross when I come across examples of people, or especially businesses, not playing nice. But thanks to the internet, we now get to call out companies who, whilst sticking to the letter of the law (or Creative Commons licence), are flagrantly abusing its spirit.

The online world–Suw's 'social web'–is no different than the offline world: there are people who give all, and people who take all, and the rest of us in the middle just trying to get by. The online world–with its Creative Commons, Wikipedia, Citizen Journalism, Social Network/Web/Graph goodness–is no more 'nice' than the towns, cities, or hamlets we live in; it's just newer is all and we don't have to worry about landfill. Continuing to set any of this up on a pedestal only serves to generate a false sense of trust and security that inevitably leads to disillusionment.

In the post associated with the comment I quoted earlier, I wrote (with some modifications to grammar):

Pessimists see the world from its dark side—always the glass half empty. They never see that the world can be made better, or that problems can be solved. They're not constructive, but they aren't destructive, either.

Idealists, on the other hand, only see the light. In their world, the sun always shines (except for that bit of rain needed for the trees), the birds always sing, and humanity exists in harmony. They are pleasant, but they can also be destructive.

The idealist is destructive where the pessimist isn't by introducing change without concern for the consequences. They say, "Look at this wonderful thing I have given you!", but don't provide the user manual. After you've managed to blow up a city block, when you look for the idealist they've moved on to another part of the world, to drop yet another idealism bomb on some unsuspecting poor sod.

Idealists. You gotta love em, because if you didn't you'd want to strangle them.

Where this is all leading is the release this week of the Creative Commons licenses: those digital goodies that one can attach to our creative efforts to let others know if they can use these efforts in defined ways. Collaboration and community, 101. Like our idealist, the Creative Commons have dropped this little bomb in our lap and then left it up to us to determine how to use these things, and what they really mean.

Jonathon Delacour, who has been called, usually with respect and affection, many things but I don't think 'nice' was one of them, shared some of my misgivings about the CC licenses. He wrote:

Picasso and Braque stood on each other’s shoulders as they invented Cubism but they were careful (and sufficiently smart) to maintain the copyright on their works. The Creative Commons Licenses, on the other hand, typify Thomas Sowell’s unconstrained vision of human nature by relying on people (“I’ve never met”) to behave honorably and to respect the integrity of my work. Spend five minutes on “this Internet” and tell me I’m not bound for disappointment.

I wouldn’t be so skeptical if the Creative Commons Licenses relied less on a rose-tinted vision of benign collaboration and instead provided greater safeguards for the real interests of those licensing their original works; or if, to borrow Thomas Sowell’s words, they replaced—to at least some degree—their “moral vision of human intentions” with a more pragmatic acceptance of the “inherent moral and intellectual limitations of human beings.”

In other words—and pardon my bluntness—what’s in it for me? Really? Other than distress and disillusionment?

It is this determination to manufacture an online Utopia, to hold fast to the rose-tinted vision that Jonathon described, of the Creative Commons–promoted by shrewd, sharp people who should have known better–that spurred me to write my criticisms years ago, and to continue to write on topic in the times since.

The Creative Commons web site has never, to my knowledge, responded to challenges, or discussion regarding the issues surrouding the licenses. When I derived a test of CC licenses, or when Creative Commons figured in a Dutch law suit, or Virgin Mobile grabbed several CC licensed photos from Flickr for its campaign, the Creative Commons community seemed to focus more on eliminating anything other than the type of license that caused the initial problems, rather than respond to the issues, or reflect on perhaps providing stronger warnings.

Ultimately, who really does benefit from the Creative Commons? Andrew Orlowski, who has never been referred to as 'nice' either, as far as I know of, wrote one of the most eye opening summations of the Creative Commons I've read:

Few participants who slap a CC license on their work understand that the mechanism was designed to benefit the network, not the humans, by removing "frictions" such as compensation or consent.

Some would say it is not the CC organization's responsibility to answer the critics, to meet the challenges–that the organization doesn't have an obligation to warn as much as it promotes. I say to stubbornly persist in wearing those rose-tinted glasses, to mark only the sunny hours, as the sun dial would say, is the ultimate irresponsibility. The Virgin Mobile lawsuit was inevitable, and it didn't have to be.

The big story in these parts today is the protest rallies in support of the group of black youths known as the "Jena 6". Jena is a small town in Louisiana, and the focus of about 10,000 protesters from all over the country, today.

It's difficult to find the facts to the story of the Jena 6, because there's no person in the world better at burying unpleasantness than a Southerner.

Ostensibly, two events happened that no one disputes:

The first event is that during a high school assembly a black student asked the principal if the black kids could sit underneath the 'white tree'– a big old shade tree that had previously been occupied by white students. The very next day, three white kids hung three (and I've heard two) nooses from the same tree in the town square

A noose is a known symbol in the South for lynching. More specifically, whites lynching blacks. The principal expelled the students, but the school superintendent overrode the Principal and gave the white kids in-school 3 day suspensions. It jez a prank, everyone says.

The second event takes place three months later. Six black kids are identified as having beaten up a white kid in the school hallway. The white kid ends up in the hospital, is treated, and released two hours later. The six black kids are charged with attempted second degree murder.

Right off that bat, you probably noticed, as I did, that it's hard to think of a school fight as an attempt or a conspiracy to commit murder. At the same time, fair play suggests that it's wrong of of a group of students to gang up on another. This isn't Rosa Parks we're talking about here, the lines are not cut and dried.

But then the story gets even more interesting. I want to point out two writings on this event.

The first is by Mel Didier a teacher in a nearby Lafayette Parish high school. Mr. Didier wrote that there were more than just these two incidents, and in fact there's a pattern of racist violence in this small town:

A black student was beaten at a social function, and no one was charged. The DA goes into a hastily-called assembly and, looking directly at the African-American students, warns them that he can end their life with the stroke of his pen.

A white graduate pulls a gun on three black students who take the gun away and no charges are brought against the white grad, but the students were charged with theft when they didn't give the gun back.

A white student taunts a black student beaten at a party and is jumped and beaten by six African-American students. Fox News points out that Justin Barker went to the hospital and was released the same day, attending a ring ceremony and social function that same day.

The DA charges those guilty of the attack with aggravated assault, and, when certain teachers and locals object, he ups the charges to attempted second-degree murder.

It's difficult to deny a pattern of racial tension in this predominantly white community. What's absolutely fascinating, though, is to read the front page of the Jena Times today, with a so-called timeline of events.

I'd copy text excerpts, but the paper actually made the story into a JPEG image and then inserted this into a frame. So I did the next best thing and copied pieces of the JPEG, highlighted phrases, and am copying the result here. I encourage you, though, to read the original. If it gets pulled, let me know and I'll post a copy.

I can't be the only one who finds it odd that the author kept downplaying any racial tension in the community, while listing event after event that is inspired by racial tension. In addition, the author also stressed the 'playfulness' of the request about sitting under the white tree, when from other accounts, this wasn't a playful request. In addition, it's pretty obvious that when white kids are mentioned, they're mentioned in a positive or neutral manner, but the actions of the black kids are portrayed negatively.

In fact reading this timeline, I feel like I've been transported back in time to the late 50's and early 60's, when white kids beating up blacks was considered nothing more than 'juvenile spirits'. What's amazing is that the town newspaper thought to publish this to downplay the racial problems the town has, when all it did for me was convince me that they exist.

According to an MTV story at one assembly where white students and black sat separate from each other, the DA held up a pen and said, specifically to the blacks, with one stroke of my pen, I can make your life disappear. Of course one person who lives near the area said the DA is more of a megalomaniac than a racist, but the end result is the same: justice is not prevailing.

I'm not fond of Al Sharpton who is leading much of the protest, and not condoning what the kids did: no matter how angry, six against one is wrong (if there were six, that hasn't necessarily been proved). But this isn't a case where these black kids decided to jump this white kid for nothing. Even the town's most fervent supports acknowledge the white kid taunted the black kids. This was a hall fight triggered by anger that got out of control, and should have been prosecuted this way.

Attempted second degree murder?

Other weblogs covering this story.

The weblog that seems to be following this event the closest is Pursuing Holiness, including a detailed weblog post on the events the day of the fight.