Proposal: The Dated Creative Commons License

Back on June 15, Peter Suber's book Open Access itself went open access, one year after its initial publication. You can get the ebook for free from MIT Press, but because of the Creative Commons license you can also get it from Internet Archive, and Unglue.it has a page to help you download it. It seems appropriate for this book to be its own publishing experiment, and from what I hear, the book has done well, in addition to doing good.

The "embargoed" or "delayed" model for open-access is tried and true in the scholarly journal business, and arguments about the appropriate length and propriety of embargoes are entrenched. In medical research, funding agencies such as NIH  demand embargoes of no longer than 12 months,  while humanities publishers argue that they need longer embargoes. Recently, the American Historical Association recommended that doctoral students be allowed to embargo their dissertations for up to six years. (Suber's book discusses delayed open access and embargoes in chapter 8, Casualties.)

Delayed open access for books, by contrast, is almost nonexistent. For ebooks, it would seem that an exclusive selling period followed by Creative Commons licensing could unlock a lot of value for society, and not just for scholarly works. Most books do most of their sales in the first year of publication and not much after that. The current duration of copyright, typically more than a hundred years, seems disproportionate in comparison. Used book stores capture some of the residual value of print books without profit to the rights holder, and libraries help to preserve another chunk of value. The lack of first-sale rights for ebooks leaves huge doubts about the viability of these channels for ebooks.

MIT Press accomplished the delayed open access with a promise on the copyright page of the ebook. Readers could rely on the integrity and prestige of MIT Press to make good on that promise. Wouldn't it be nice if doing something similar was easy to do for any sort of work, just like attaching a copyright date? Suppose I wanted exclusive rights to this blog post for five years, it would be nice if I could just write "(CC BY 2018)" with a url to provide the legal code.

I don't think I can really do that easily, today. Without some sort of license language, nothing would prevent me from changing my mind, so my prospective license offer would not be reliable. Today's Creative Commons licenses depend on conveyance of the license and assume immediate effect.  In the publishing world, companies go bankrupt or get acquired all the time. If Elsevier had acquired MIT Press in May, a purchaser of the book in April would have no assurance that the book would really go Open Access in June. This is not such an issue with journals because they're continuing publications.

Although I'm not a lawyer or anything, I've taken a first stab at language for applying a future date to a Creative Commons license. I've used Docracy to make the document public so that anyone can make modifications to improve it. (If you do a lot of contracts and you haven't seen Docracy, I suggest you go check it out!)  Or maybe other people have worked on this and can contribute some better language.

The beauty of Creative Commons is that it gives creators more options for distributing their works in partnership with users. A robust way of granting future CC licenses will allow more creators to vote with their works for mitigation of over-long terms-of-copyright.

Update: a quick comment from Timothy Vollmer points to a thread on [cc-licenses] that's very relevant, including some interesting discussion of the mysteriously named "Founder's License".

Update 2: James Grimmelmann, a real law professor, suggests via Twitter that "It is not out of the question that one could unilaterally enter into a binding future license at present." and points to the language he used on a 2005 Yale Law Journal Note:

Copyright © 2005 by The Yale Law Journal Company, Inc. For classroom use information, see http://www.yalelawjournal.org/about.asp. After June 1, 2006, this Note is licensed under the Creative Commons Attribution 2.0 License, http://creativecommons.org/licenses/by/2.0/. Any use under this license must carry the notation “First published in The Yale Law Journal, Vol. 114, pp. 1719-58.”

This suggests that maybe I'm making things too complicated, which wouldn't be the first time. But I wish Creative Commons or someone would just tell us what to do!

Update August 9: I've written more about what we want to do with Dated CC at Unglue.it.

Does Asking for Money on Scribd Negate Creative Commons?

I think it does.

This is a quick post motivated by a balky comment system on Chronicle of Higher Education. There, Prof. Adeline Koh explores options available to scholars who want to make their dissertations publicly available. Koh chose Scribd to distribute her dissertation, Inventing Malayanness: Race, Education and Englishness in Colonial Malaya, and also chose to use the Creative Commons BY-NC-ND. So far, so good. Scribd is a perfectly good channel for distributing non-commercial content; CC BY-NC-ND is a perfectly honorable license for a dissertation. (Though I think CC BY-SA is much better in most use cases.)

But Koh used Scribd to set a download price of $2.99 on her dissertation. She has an absolute right to offer her work for sale under the license she chose. But there's a problem. Asking for money converts the Scribd offering to "Commercial Content", and thus invokes a bunch of provisions of the "Scribd Paid Access End User License Agreement", which users must agree to in order to purchase a download. This agreement states quite clearly

• You may not sell, distribute, or display any Scribd Commercial Content other than for personal use; 
• You may not share, lend, or rent copies of Scribd Commercial Content;
• You may not disable or circumvent DRM supplied with Scribd Commercial Content; 
• You may not make copies of all or any portion of any Scribd Commercial Content;

These conditions are in clear conflict with the specified Creative Commons License, and negate its intent. I am not a lawyer, but I'm pretty sure that if I tried to exercise my Creative Commons rights to a work I purchased from Scribd, Scribd could find a lawyer to sue me for doing so. 

All things considered, I think that use of Scribd in this circumstance is an attack on the integrity of the Creative Commons license. It does not reflect well on Prof. Koh, though she's clearly trying to do the right thing; more academics should be thinking about these issues. If she really wants to apply a Creative Commons license, she should be aware that anyone should be able to take their copy and make it available for download on a non-commercial site such as Internet Archive.

It's a shame that legal ambiguities and technicalities are preventing Creative Commons licenses from being as useful as they might be. Maybe we can get Scribd to clarify the EULA to accommodate situations like this.

Update August 2: Here's the response from Scribd.

Jason (Support Desk) Aug 02 09:30 am (PDT) Hi, The Scribd EULA declares "You may not share, lend, or rent copies of Scribd Commercial Content" under the assumption that most Commercial Content is posted with a standard copyright. Copyright licenses, including any Creative Commons add-ons, are set by the uploader. The uploader is the ultimate authority on a document's distribution license. Scribd takes no position on distribution license set by the uploader. If you have specific questions about copying or redistributing a particular document, please contact the uploader. I suggest leaving a note on the document page and the uploader will be notified. Best regards, Jason Bentley Scribd, Inc. So my answer to "is the CC license negated?" changes to "No, it's just muddied a bit".

NJ Senate Primary Could Become a Referendum on NSA Surveillance

Yesterday, Glen Greenwald, the journalist at the center of the Edward Snowden leaks, essentially endorsed Rush Holt for Senate, and promised to write more this week.

So let me give you some context about our crazy New Jersey Senate race. The open seat in the US Senate was created by the death of 89 year-old Sen. Frank Lautenberg, a Democrat. Our governor, Chris Christie, is a Republican seeking re-election in November (maybe the presidency in 2016). New Jersey is much more "blue in Presidential election years than it is in the off years when turnout is low. Christie didn't want to jeopardize his November chances by having a popular Democrat on the ballot to upset the usual voter turnout pattern, and so we have an odd situation where a Senate primary is being held in August. The voter turnout is expected to be minuscule, and Cory Booker has been considered a shoo-in.

Booker earned widespread admiration and media stardom by ousting a corrupt political machine and becoming the Mayor of Newark, New Jersey's largest city. His name recognition and ability to raise a huge amount of money in a short period of time is a huge advantage. He's already started advertising on cable TV; New Jersey is a very expensive market for politicians because the primary media outlets are New York and Philadelphia. He has 1.4 million followers on Twitter. Despite Booker's big lead, the unusual dynamics of this election mean that another candidate with a very motivated base of support could conceivably pull an upset.

Cory Booker faces three challengers in the Democratic primary. Two of them, Frank Pallone and Rush Holt, are Congressmen from the middle of the state, presumably attracted to a intra-term election that doesn't require them to give up their House seats. The other, Sheila Oliver, is the Speaker of the New Jersey General Assembly, and represents the district where I live. Like Booker, she's from Essex County, and there are a lot of people still upset about Booker's mayoral win.

Holt has put the privacy issue front and center on his website, and has vowed to repeal the PATRIOT Act. He also has the legislative record to do so, as he opposed both the extension of the PATRIOT Act and the FISA Amendments Act. His website features a petition and this statement:

As former chairman of the House Select Intelligence Oversight Panel, I know that these surveillance programs have compromised Americans’ rights while providing only the illusion of security. As a scientist who understands how these massive databases can be used and abused, I am frightened by what this near-universal surveillance suggests for the future of our democracy.

Cory Booker is triangulating a bit on the NSA. Here's what his website says:

I was deeply troubled by recent revelations of the scope of the National Security Agency’s domestic data collection. We failed as a nation to thoroughly debate and create public oversight before this highly questionable data collection began. It is time to bring this program to light and fix that error. 

It is a basic principle of our founding that laws be open to public debate and inspection. We must update the rules that permitted this program to exist and ensure Congress, the courts, and the people have access and oversight. We need to vigorously guard our 4th Amendment privacy protections while still protecting Americans from terrorism. There are serious questions about whether this program successfully does that, and we cannot ask these questions after the fact again. 

As "Liberty Equality Fraternity and Trees" on Daily Kos  points out, Booker "managed to talk about the NSA revelations without mentioning either (1) the PATRIOT Act or (2) the FISA Amendments Act. "

At a "Bloomberg View" lunch in New York, Booker talked about Edward Snowden. Buzzfeed reports:

As for Snowden, who Booker described as “a whistle-blower — however you want to call him,” he noted that “I don’t think we’d be having this conversation now” without him. 

He said Snowden had broken the law, and that fell short of true civil disobedience because he left the country. 

“It’s not heroic to be the person who stands up and you blow a whistle and then you sprint out of Dodge,” he said. “Stay here in your country — stand up.” 

Booker invoked “friends who smoke pot and one of them saying to me, ‘This is my civil disobedience, man.’” 

“Go smoke your joint in front of a policeman and get 100 of your friends to do the same thing,” he said.

There's nothing about the NSA on Pallone's website, but his recent votes have tracked Holts'.

Oliver hasn't campaigned much, but this is what her website says about the NSA surveillance program:

On privacy, Sheila Oliver believes that we must balance the needs of homeland security with protecting the privacy of law abiding citizens. She believes that some of the recent revelations made regarding National Security Administration (NSA) programs reveal that we’ve gone a step too far and that we must work to ensure that the privacy of law abiding citizens is protected.

This is my lawn.

Whichever Democrat wins, they'll face Steve Lonegan in a September election, and Lonegan has been vocal in his outrage at the NSA surveillance. (Lonegan faces only political novice Alieta Eck) At a recent event Lonegan responded to Booker's call for more discussion about the NSA program:

“We had that robust discussion…two-hundred and thirty-seven years ago,” Lonegan told a cheering audience .... “It was called the American Revolution.”

Notes

1. Lautenberg's Senate seat is being kept warm by Jeffrey Chiasa
2. Unaffiliated voters can vote in either primary, but the deadline has passed for Republicans to switch affiliation and vote in the Democratic primary, and vice versa.

Update July 26:

In the evening of July 24, the House of Representative voted on an amendment to a defense appropriations bill to defund the NSA's bulk data collection program. The amendment, co-authored by by conservative Republican Justin Amash and liberal Democrat John Conyers was narrowly defeated by a final vote of 205-217 with 12 not voting. The vote was characterized by highly unusual alliances. Rep. Holt voted for the amendment and Rep. Pallone did not vote. You can check how your own representative voted at http://defundthensa.com/ Blogger Jeff Jarvis repeatedly asked @CoryBooker for his position and got no answer. Rep. Holt then introduced his promised "Surveillance State Repeal Act".

PW: "Author as Entrepreneur"

My article for Publisher's Weekly on crowdfunding for books, Author as Entrepreneur, has emerged from behind the paywall. It's a follow-up of my blog post from April,  Book Publishing After the JOBS Act Revolution. An excerpt:

“From a business perspective, I think the business model of crowdfunding book equity is not practical,” said Ash Kalb, a tech lawyer and venture capitalist who founded Singularity & Co., which crowdfunds e-book editions of classic science fiction. “For 99.9% of books, the overhead costs of dealing with a large number of unsophisticated investors are going to be too high, and one lawsuit from a disgruntled investor wipes out the business. But really, it all depends on the bar the SEC raises with the rules, so we shall see.” 

In England, where equity crowdfunding is already legal, Web sites such as Seedrs and CrowdCube think they have found ways to address the problems. CrowdCube has raised over £6.7 million from more than 30,000 investors for 46 businesses. Seedrs has funded 21 startups with more than £1 million total. 

Figuring out how to churn out small publishing startups on an assembly line won’t be the only barrier to making crowdpublishing work. A bigger obstacle may be the changes in transparency that crowdfunded books require. 

“Have you ever seen a 10-K or a securities offering? asks Kalb. “Do you really want to list risk factors at the start of your book? ‘No one may like this book. I may be a bad author. My wife may leave me. Werewolves may not be as popular next year...’”

Since it was originally published in the print edition, the web version is missing the links, so here they are:

• Unglue.it
• PubSlush
• Unbound
• Singularity & Co.
• TenPages
• CrowdCube
• Seedrs
• Hollow World KickStarter

There have been some recent development on the securities regulatory front. The SEC has decided to drop its prohibition against "general solicitations" of securities for sale as long as they are available only to accredited investors, as required by the JOBS Act. (I don't understand how the SEC gets to decide whether to implement a law, just as I don't understand how Apple could have been an ebook monopolist before it sold its first ebook.) This is a LONG way from legalization of equity crowd funding, but at least some movement is happening.