A new conventional wisdom began to spring up around free software, led in part by theorists like Eric Raymond, who were interested in the economics of free software production. Much of this thought centered around service-based and other ancillary sales for supporting free software. Based on this kind of thinking, it's fairly easy to imagine extending free licensing ideas to utilitarian works. But what about aesthetic works? The Creative Commons was established in 2002, largely to solve the kinds of licensing problems that aesthetic works might encounter, and it has been remarkably successful, pushing the envelope of even this newer wave of thought. Today, Creative Commons licensed works number in at least the tens of millions. And more than a quarter of those are using the free "Attribution" or "Attribution-ShareAlike" licenses.

The problems with free-licensing aesthetic works

The economics of free software is not so difficult to support. After all, we don't value software for what it is, but for what it does. No one really just sits and admires Microsoft Word, or LyX, or AbiWord. They use one of these programs to create written works. An interoffice memo written in AbiWord may be indistinguishable from one written in MS Word, and AbiWord is cheaper and more flexible. Thus, from the user's point of view, AbiWord may be a complete replacement of Microsoft Word.

If, on the other hand, you were putting together a museum collection of "word processing programs", AbiWord would not be interchangeable with Microsoft Word: only Microsoft Word can stand in such an aesthetic role for Microsoft Word. Works, when valued aesthetically, are never interchangeable.

In a notional Museum of Software, software is displayed for aesthetic value, rather than utilitarian. The presence of one piece of software in such a collection doesn't invalidate another, because no piece can "replace" the aesthetic value of another (only its utilitarian value).

That was a contrived example, because software usually isn't valued aesthetically. But this is the norm for artistic works. If you are a Beatles fan, you will never be satisfied with a free-licensed band that just "sounds a lot like the Beatles" or "can be used the same way as the Beatles songs".

Works, when valued aesthetically, are never interchangeable

It is also fundamentally impossible to prove the relative objective worth of aesthetic works. For utilitarian works, we can always list a set of objective criteria, test different products, and evaluate which is "best" according to those criteria.However, for aesthetic works, such judgements must always be subjective. At best, we ask a larger or more representative group of people to give their opinion (in other words, we can report objective facts about collected subjective opinions), but that's the best we can do.

Aesthetic works can only be valued subjectively. Is the Mona Lisa a great work of Renaissance art or just a lady with no eyebrows? Are SF pulp illustrations cheap genre sketches or classic works of imagination? Is Edvard Munch's "The Scream" a classic expressionist work, or just a really bad painting of a very disturbed person? When you see Jurvetson's art electronic head, do you think what a great commentary it is on modern society's inundation with technology, or just "some people have way too much time on their hands"? Is the colorized photograph on the lower right just a photo of some pipes and a fire escape or is it a lyrical architectural impression? Beauty is in the eye of the beholder. (L-R/T-B: Leonardo da Vinci/PD, Unknown / PD, Edvard Munch / PD (in US), Steve Jurvetson/CC-By-2.0+, Till Krech / CC-By-2.0).

Beauty is in the eye of the beholder

At the same time, aesthetic works lack many of the ancillary funding opportunities of utilitarian works like free software. It's pretty hard to sell a service contract on a painting or a music track. So, while there is still great public benefit in creating free-licensed aesthetic works, the economic support structure which enables the private parties who would create this benefit to be remunerated by the public for their efforts is missing.

For aesthetic works, "use" means only "to appreciate or sense directly" by the consumer, while for utilitarian works it means that the work is involved in processing to create another work or product (sometimes immaterial) which is actually directly of value to the consumer. This indirection provides a more complex environment and more possible business models. However, for aesthetic works, it is hard to escape the direct sale model as the principle means to make income from professional production.

It's pretty hard to sell a service contract on a painting or a music track

Aesthetic works have one other important property, which is that they are used to communicate opinions and make political statements. With aesthetic works, we directly influence people's opinions and sometimes their actions. Such statements also reflect on the author's reputation (for both intent and talent), which can lead to strong positive or negative consequences.

Given the extreme subjectivity of artistic value, some artists may not appreciate seeing their work "improved" by others. Furthermore, this derivative work of Leonardo da Vinci's famous painting might well have contained offensive language or pornographic content. Would such derivatives reflect poorly on Da Vinci? What about on a less-well-known artist?

Some artists may not appreciate seeing their work "improved" by others

Thus, aesthetic works present special challenges for free licensing and economics. And this leads to today's "Myth".

Myth #3

"Well okay, free works can succeed if they are purely utilitarian, but what about culture and art?"

This is one of the most sophisticated objections to free culture, and the hardest to refute. But we will see that there are ways that free culture continues to produce aesthetic works.

The Creative Commons

In 2002, Larry Lessig founded the Creative Commons to solve artistic licensing problems with a modular system of licenses designed to accommodate the needs of creators of "creative"—or more accurately, "aesthetic"—works. Since then, the mission of the Creative Commons has been to simplify the existing network of use cases by defining a finite set of license modules, and then combining those into generally useful licenses for all kinds of media.

Creative Commons licenses span a plethora of use-cases and user communities. The free licenses (left) are of the most interest to advocates of the "Commons" (or the "Bazaar"). For many artistic producers who are professional or semi-professional, however, the "Non-Commercial" "semi-free" licenses are of more interest. These mostly legalize practices that have already existed for some time, such as "fan fics" and "fan art" (served by the NC and NC-SA licenses) and file-sharing distribution of verbatim works (served by ND and NC-ND licenses). The new "CC+" initiative aims to improve the ease with which these works can be monetized by transferring them to individual non-free licenses in the copy-sales marketplace (another use, not shown, may be to transfer them to the free commons).

The organization provides three types of information products for each of its licenses: the actual license, which CC calls the "legal code" (meant to be understood by lawyers and meticulously detailed in meaning); a brief set of descriptions intended to help licensors and licensees to understand what they are choosing, which CC calls the "deed"; and a machine-readable RDF representation which helps search engines and other AI tools to recognize and sort CC licensed material.

Creative Commons licenses span a plethora of use-cases and user communities

In addition to creating new licenses principly targeted at aesthetic works, the Creative Commons has also subsumed the pre-existing GPL and LGPL licenses for software, by providing the "deed" and RDF code to complement the existing licenses' "legal code".

The Creative Commons license "deed" for the Attribution-ShareAlike-3.0 license (CC-By-SA-3.0).

Measuring the success of Creative Commons licenses

It is extremely difficult to find any accurate figures on the total adoption of Creative Commons licenses. The existing studies worked by doing search queries through major commercial search engines (Yahoo and Google), using features which allow tracing "backlinks" to the Creative Commons license pages. The Creative Commons has made some attempts to measure adoption statistics, however, which are intriguing.[1]

This music download site contains about 21,000 tracks under a wide variety of licenses, including free and non-free (about 75% are from Creative Commons) (Web capture and site statistics data from http://www.dogmazic.net).

There are several things that are suspect about this approach, including the incompleteness of search engine databases, the uncertainty in determining that backlinks necessarily equate to license assertions, and the assumption that there is a one-to-one relationship between license assertions and licensed works. However, in the absence of better data, it's worth looking at the statistics that Creative Commons has been able to publish.

It is extremely difficult to find any accurate figures on the total adoption of Creative Commons licenses

Creative Commons' own analysis of the data is somewhat misleading, because it treats the separate license modules as if they were orthogonal (i.e. as if use of the "ShareAlike" module means the same thing, regardless of whether the "Non-Commercial" module is used or not). So, I have re-classified the data for my own analysis, dividing the licenses into "Free/Non-Copyleft" ("Public Domain" and "Attribution"), "Free/Copyleft" ("Attribution-ShareAlike"), and "Non-Free CC" (all licenses with "Non-Commercial" or "Non-Derivative" modules).

In general, the "Non-Free CC" licenses have been very successful, probably reflecting a general dissatisfaction with decreasing fair use, increasingly closed "intellectual property" legislation, and attacks on file sharing over the internet. However, these licenses are not "free" in the same sense as "free software", and represent a distinct phenomenon from the growth of the "Free" licenses.

Estimated total and total "free" CC licenses, plotted over time, with exponential growth curves overlaid, showing that it appears to be a good fit to the available data. The free licenses are gaining slightly against the non-free licenses. It must be emphasized that the data is poor, however, since there are many poorly-controlled variables in the collection process.

From early on in the Creative Commons' history there has been a political debate over whether the "Non-Free" licenses are helping or harming the adoption of "Free" licenses. The data don't necessarily support either position, but it's clear that the free licenses are succeeding, whether because of or in spite of the other Creative Commons licenses.

It's clear that the free licenses are succeeding, whether because of or in spite of the other Creative Commons licenses

The most recent study on the Creative Commons licenses was conducted by an outside research group at Singapore Management University in 2007, and was hopefully more controlled in its handling of the source data. It estimated a lower bound of about 60 million CC license backlinks, based on data from Yahoo and Flickr. In this study, the "Free/Non-Copyleft" group represents 12%; the "Free/Copyleft" is 18%; and the "Non-Free" group is 70%.[2]

Information about the preferences of one type of license over another are more solid than the total values. These pie charts show the percentages of free, copyleft, and non-free licenses. Note that the free licenses start out at a bit under one quarter of the total in early 2005, and finish at well over one quarter in 2006. The charts are scaled to represent correct areas for the total license figures that were published at the same time (but this total scale figure is less reliable than the license ratios).

Freedom for the mainstream

Despite the shakiness of the theoretical foundation for producing aesthetic works professional and releasing them under free licenses, a lot of material is nevertheless being produced. Is this material created just by amateurs? (If so, they are producing a lot of it!)? Or is it the result of business models we have not considered? The non-free licenses from Creative Commons signal a broader, more mainstream cultural phenomenon of people who are disenchanted with the "more is better" attitude towards copyright that the proprietary industry has shown.

There are still many questions, but the Creative Commons and the free culture surrounding it is going strong.

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