A square peg for a round hole? What Creative Commons means for the world

October 31st, 2009

The aim of this short response article is to use Winner’s paper to outline whether any particular politics are at play in the design of the copyright license suite developed by Creative Commons, to assess whether a constructive ‘tussle’ as defined by Clark et al is occurring between different stakeholders in deciding on preferred Creative Commons licenses within different communities of practice, and to look to Flanagan, Howe and Nissenbaum to possibly discover a way in which the design challenges can be overcome using empirical research.

Langdon Winner, in his paper ‘Do Artifacts Have Politics?’ discusses two central ways in which artefacts can contain political properties. ‘First are instances in which the invention, design, or arrangement of a specific technical device or system becomes a way of settling an issue in a particular community… Second are cases of what can be called inherently political technologies, man-made systems that appear to require, or to be strongly compatible with, particular kinds of political relationships’.

As Winner suggests: ‘The things we call “technologies” are ways of building order in our world.’ In the case of Creative Commons (CC), there are a number of different ways in which this particular solution could have been designed (the sheer numbers of open licenses and tools reflect this) which highlights the fact that the peculiarities of the design choice reflect specific forms of power and authority at play – both when the product was designed, and as it is being modified and developed.

If looking at the ‘processes by which structuring decisions are made’ is a good way to understand the politics of a particular technology as Winner suggests, it may be useful to look back at the particular problem CC was launched to solve and at the power relations inherent in those who made decisions about the solution’s design.

Launched a month before the result of the Eldred vs. Ashcroft case, CC was designed as a solution to the problem that there was no simple way for people to give up some of the rights that they received automatically under copyright law. The solution was designed primarily by American, white, male technology lawyers, as an online tool for marking freedoms associated with creative works and works of scholarship and science.

Today, CC has been ‘ported’ to over 50 jurisdictions around the world. Its use has been extended to offline works, it has been applied to software projects in addition to creative works and works of scholarship and science, and it has arguably been used as a ‘politically-correct’ way for corporations to retain their economic monopolies by using the least restrictive of CC licenses. In effect, the CC solution is being used to solve a range of different problems. Because the major decisions about the design are now fixed and the latitude of choice has decreased, it becomes more difficult to introduce changes to reflect the needs of new stakeholders. Although volunteers from countries around the world contribute to discussions on new license versions, an American, white, male board composed mostly of lawyers, dominates the Creative Commons Board, suggesting that future design choices will necessarily reflect the bias of CC’s current leadership.

As Winner says, this is not to suggest that there is any conspiracy, but only that those making design decisions reflect a particular power hierarchy. If the solution was being designed by and for the current audience (consisting of different levels of internet adoption, legal literacy etc) it is certain that the solution’s design would be very different.

The ‘more troubling claim’ that Winner addresses in analysing the question ‘Do artefacts have politics?’ is the belief that some technologies are ‘by their very nature political in a specific way’.

As Winner explains, society enjoys labelling technologies as either a force for democracy and liberation, or as a sign of our ultimate doom. In the case of Creative Commons, the proclamations (in the media and in scholarship) generally vary between those that assume CC to be “essentially democratic” and “good” versus a minority who suggest CC to be a slippery slope towards the end of property rights.

What ‘particular form of political life’ are we choosing when we choose Creative Commons?

David Clark et al might suggest that the modularity of CC licenses, their open architecture and their allowance for choice reflects a favourable design in keeping with the ‘end to end’ nature of the Internet. There is still a set of important questions that remain unanswered by Clark et al, and it is at a more granular level that the cracks begin to appear. Just because there are choices, for example, doesn’t mean that those choices don’t reflect a particular bias in deciding which choices to offer. What level of modularity works best? And what kinds of outcomes are being designed to ensure here?

Some of the critiques of the Creative Commons that focus on user choice and modularity emphasise these questions. Richard Stallman, founder of the Free Software Foundation, for example, suggested that providing users with choices as to which license they wanted to use was wrong because some of these licenses could not be called ‘free’. For the free software movement, there is only one (at least in terms of the Creative Commons license choices) version of a “free” license, and offering users a choice only allowed more powerful forces easy membership to a political movement that the FSF didn’t believe should be diluted by those who weren’t prepared to give up very much.

In response to such debates, Lawrence Lessig and other Creative Commons supporters suggested that CC was merely enabling each sector to decide for themselves what the best license was for their purposes. In the words of the ‘Tussle’ paper, CC was designing the perfect ‘playing field’ rather than the perfect outcome.

The particular design of the playing field, however, cannot be said to be objective, and certainly reflects to a large extent who is invited to play the game and on the basis of which rules. The fact that South Africa is the only African country that has ported the CC license suggests that there may be other possible solutions that would at least involve people from certain communities doing some of the ‘tussling’ rather than being left out of the debate entirely. The fact that CC was designed by a particular community to solve a particular problem indicates how far its influence will reach in the current incarnation. Unless it involves others in designing future solutions then it will remain a distinctly American solution that is being translated (or to use the CC term ‘ported’) to solve problems that may be different but that are similar enough in many countries to have some effect.

Flanagan, Howe and Nissenbaum in ‘Embodying Values in Technology: Theory and Practice’ have a possible solution to this potential problem. Conducting empirical investigations of values in relation to individuals and their societies who are both using and not using the licenses may be just what is needed to ensure that CC’s design evolves as it grows to be seen (and to see itself) as a truly global solution. Developing technologies for such global use, as Flanagan et al suggest, requires ‘reasonable tradeoffs’ in order to discover ‘a middle ground’. This isn’t easy, but finding out what is important to the global creative class is essential in ascertaining ‘whether a particular design embodies intended values’. CC would do well to conduct such studies and transparently deliver results of both intended and unintended consequences in order to refine the solution as it progresses.

In conclusion, as Winner suggests, it is not enough to declare a technological solution to be either inherently good or bad. What matters, and what influences the effects of a technology is in ‘the specific configurations of both hardware and the social institutions created to bring that (solution) to us’. In the case of Creative Commons, it is essential that as its user base grows, that the design of Creative Commons solutions develop in a way that aligns to its new global role. Closely analysing individuals using and not using the technology in a variety of contexts, taking note of intended and unintended consequences, and critically assessing the power relations in the current leadership are all essential to establishing CC as a global player that reflects the diversity of its users.

In doing so, CC will have to accomplish the difficult task of recognising the important role of diverse contexts in the design of future solutions. This is important because, to quote Winner: ‘(Saying that) we ought to attend more closely to technical objects themselves is not to say that we can ignore the contexts in which those objects are situated.’

Trade Secrecy

October 28th, 2009

A few recent developments which relate to Dave Levine article (Trade Secrets in our Public Infrastructure) that I came across:

Sequoia open-sources one of its voting machine’s software:
http://www.wired.com/threatlevel/2009/10/sequoia/

Interesting tussle around public vs private infrastructure development in a Minnesota town trying to develop municipal fiber
http://arstechnica.com/tech-policy/news/2008/10/city-owned-fiber-network-a-go-as-judge-tosses-telco-lawsuit.ars

Hello world!

August 20th, 2009

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