Should OER favour commercial use?

It was in 1995 when I first aspired to demonstrate the suitability of the World Wide Web for educational materials and in demonstration of this I posted a document I had authored a couple of years previous for my students at Grande Prairie Regional College, Stephen's Guide to the Logical Fallacies. This work – and none of my work in educational technology since – remains my most enduring and popular work on the web.

There not being a Creative Commons at the time, and the Gnu Free Documentation License being four years in the future (Stallman, 1999) I by necessity created my own copyright notice. I didn't name it or propagate it or try to create a movement out of it; I simply declared how I wish my work to be used. Here's what the copyright notice stated:

- Stephen's Guide to the Logical Fallacies (hereafter referred to as "the Guide") is copyright to Stephen Downes, Brandon, Manitoba, Canada.
- Any person may reproduce this Guide, in whole or in part, for any purpose, provided the following conditions are met:
1. That the author, Stephen Downes (stephen@downes.ca) be notified by email or in writing.
2. That no money is charged for access to the content of this site. Money may be charged for:
-- reproduction costs, if the Guide is printed and distributed on paper
-- course fees, if the Guide is used as supplementary or resource material in a course
3. That this copyright provision be included in all publications of this Guide.
Note: the purpose of this copyright is not to restrict use of or access to this Guide. In fact, the opposite is the case. The purpose of this copyright is to ensure that the contents of the Guide remain freely accessible to all persons in perpetuity. (Downes, 1998)

I've updated the URL and email address over the years but otherwise this text is unaltered from the original posting in 1995. The original notice also included explicit permission to link, to create mirrors (subject to the main copyright notice), and an expression of limited liability.

I thought then and I think to this day that this was a pretty good set of conditions. If I regretted any of the provisions, it was the requirement for notification, however, the posting of a single email message was never an onerous burden for use, and it allowed me to justify the continued maintenance of the site. What moreover was the case was that my intent was clear. "The purpose of this copyright is to ensure that the contents of the Guide remain freely accessible to all persons in perpetuity."

I find it a point well worth making that there is an entire history of open source and open licensing that originated outside the Berkeley-Stanford-Harvard nexus that is now regarded as authoritative. I had based my own copyright statement loosely on the licenses that prevailed at the time in the world of Multi-User Dungeons, and in particular, as an effort to improve upon the license authored by George Reese (Descartes of Borg) for the Nightmare MudLib, a body of code I had used for a number of years in various academic pursuits. As the Wikipedia stub (Wikipedia, 2011) notes, "Technically, Nightmare 3 was released under a pre-Open Source open source license. In other words, it predates the concept of open source but was available for use and modification free of charge consistent with modern Open Source principles."

The licensing arrangements for MudLibs were created, not with coders and programmers in mind, but with MUD players. As George Reese writes,

Since all drivers except DGD were derived from LPMud 3.0, they all require a copyright at least as strict as that one, which basically states that you can use the server as you like, so long as you do not make a profit off of its use. Most current servers have much more strict and explicitly copyrights. On top of that, many of the mudlibs which exist also have similar copyrights. To require money of your players is therefore a violation of international copyright laws. DGD requires licensing through a third party company. (Reese, 1998)

Lars Pensjö, who wrote the original LPMud (Bartle, 2003, p. 11) in 1989, wanted to ensure free access to MUDs for the players. As the original MUDOS license stated, "Permission is granted to extend and modify the source code provided subject to the restriction that the source code may not be used in any way whatsoever for monetary gain." (mwiley, 1999) As the discussion makes clear, this is not a prohibition against the recovery of reasonable expenses. It is intended mostly as a prohibition against one person using another person's work for profit.

Why was this important? The reasons become clearer when we fast-forward twenty years into the future and look at what has become of the online multi-player role-playing environment. The license conditions weren't respected. As Richard Tew (Donky) writes, "That's the thing with releasing mudlibs, people make a few trivial changes and then decide that it has changed so much that it is effectively something completely new." (Tew, 2010) After appropriating the idea and (often) the source code, the commercial sector came to dominate the world of multi-player role-playing games. Today, if you want to play, you pay.

My observation, through not only the history of MUDs but through the history of online software and content in general, is that unless the non-commercial clause is stated and enforced, a set of two major phenomena occurs: conversion, and enclosure.

By conversion what I mean is essentially the appropriation of free and open content and resources by commercial providers. The intent of these providers is to obtain whatever may be found for free, and to convert it to commercial advantage. It is an old phenomenon. John Locke describes the principles behind conversion as follows:

Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to... (Locke, 2010, pp. Chapter 5, Section 27)

The software created by hackers and volunteers, the content placed on the web by authors and professors, the styles cultures and mannerisms on people on the street – all these and more are thought of as being in a ‘state of nature' by commercial providers. Through the slightest of effort, these words are appropriated, and converted into property, as though a man were harvesting an apple from a tree in the commons.

The phenomenon of conversion would be innocuous enough, were it not for the second phenomenon, that of enclosure. Having created a commercial product, the provider now finds that his primary competition stems from the original non-commercial alternative. Hence, it is necessary to in some way make access to the original, non-commercial source more difficult, if not impossible.

For a graphic illustration of this phenomenon, it is worth attempting to locate the citation just referenced from John Locke.  Employ the following search text in Google: "locke ‘removes out of the state of nature'". This is a very precise search and should take us straight to the original source, which is public domain (having been published in 1690) and freely available on the web, via the Gutenberg Project.

For me, this original simply does not appear in the search results (your results may vary slightly, as Google localizes search results; I have attached a screen shot below). There is one WordPress blog post, and then a series of essay-writing and term-paper authoring services. Through the use of search engine optimization (SEO) commercial providers have made it impossible to locate the original on the web; searchers must know to go directly to Gutenberg and locate the material from among the 30,000 books published on that website (and if it's not among the 30,000, then I don't know what searchers can do).

In a paper I presented at one of David Wiley's Open Education conferences (Downes, Reusable Media, Social Software and Openness in Education, 2004) I described a number of the common practices of enclosure, all prevalent in today's commercial online environment:

Lock-Out – the imposition of subscription fees or similar access barriers to the environment in which the free resource is located. This is classic ‘enclosure', the placing of a fence around the public domain resource. Lock-outs include tuition fees, subscription fees, or the placement of authentication or rights management systems onto public domain content. Search your local bookstore for the public domain version of Locke's Second Treatise; you won't find it. Free publications are banned in bookstores.

Lock-in – a cousin of lock-out, lock-in involves the committing of users to a particular technology which then becomes expensive or difficult to stop using, which in turn enables the charging of fees for access to public domain materials. The classic example of lick-in today is the Kindle or iTunes marketspace, which become increasingly entrenched as the only way to access contents.

High Bar – this is the creation of difficult or expensive hurdles against the provision of free or open content; the high bar is intended to prevent distribution of content in the first place. In the educational space, the requirement that content must meet rigid format specifications (such as, say, IEEE-LOM's 67 metadata elements) is an example of high bar.

Flooding – this is the enclosure practice employed in the Google search results. It becomes impossible to find the original free resource when the market is flooded with commercial alternatives.

Legal Risk – this is a variation of the ‘fear uncertainty doubt' (FUD) tactic that is employed against free software. Essentially, the provider of free or public domain content is threatened with the possibility of a lawsuit unless certain conditions are met. Of course, the conditions can never be met; what is important is not that the provider satisfy the conditions but rather that they be held under threat of lawsuit. The present attack on fair use, which clouds fundamental rights with the cost of enforcing them, is an example of the legal risk method of enclosure.

I did not have all of these conditions were in mind when I wrote my first copyright license, but enough of them were to cause me to want to protect my work against the possibility of commercial exploitation. The current legal environment, in which students are charged millions of dollars for sharing song, in which patent and trademark lawsuits mar the distribution and use of educational software, in which students are forced to pay every higher tuitions to access the intellectual heritage that ought to be the birthright of all humanity, these are the conditions that demand, for me at least, the use of the non-commercial clause in my copyright statement.

As they say, your results may vary. Your motivation, and your experience, may prompt you to follow a different course. I do not desire to speak for others.

But nor either will I suffer my own approach to content licensing, an approach well-rooted in history and experience, as in some sense not free. And I beg the reader to consider one final matter. And that is, between the two schools of content and resource licensing I have described in this short post, there is a significant difference in perspective:

- On the one hand, from the Berkeley-Stanford-Harvard set, a perspective primarily motivated by, and expressing the needs of, the owners of content and resources, however obtained, to a maximally free use of those resources to whatever purpose, including commercial exploitation, and



- On the other hand, from the students, writers and hackers, a perspective primarily motivated by, and expressing the needs of, the creators and users of these contents and resources, where the purpose is, and always was, the direct expression of creativity and culture from one to the next to the next, without the barriers imposed by commercial exploitation.

I am not on the side of the owners. I do not believe (Downes, Copyright, Ethics and Theft, 2003) and have never believed that these owners are in legitimate and honest possession of the full body of material they now purport to sell; they have, as Tew states, made a few trivial changes, and called it their own. They are free, in my mind, to sell their labour honestly, like the rest of us, but they are not free, in my mind, to hold the rest of us hostage in order to enable themselves to do so.

References

Bartle, R. (2003). Designing Virtual Worlds. New Riders.

Downes, S. (1998, June 5). Copyright Notice. Retrieved from Stephen's Guide to the Logical Fallacies: http://www.fallacies.ca/copyrite.htm

Downes, S. (2003, January 5). Copyright, Thics and Theft. Stephen's Web .

Downes, S. (2004, September 7). Reusable Media, Social Software and Openness in Education. Stephen's Web .

Locke, J. (2010). Second Treatise of Government. (D. Gowan, Ed.) Gutenberg Projecr.

mwiley. (1999, May15). Threshold RPG = Copyright Infringment? . Retrieved from rec.games.mud.lp: Threshold RPG = Copyright Infringment?

Reese, G. (1998, October 1). LPMud FAQ. Retrieved April 17, 2011, from LPMuds.net: George Reese

Stallman, R. (1999, September 12). New Documentation License--Comments Requested. Retrieved from gnu.misc.discuss: https://groups.google.com/group/gnu.misc. discuss/browse_thread/thread/c6c449e5c50847f8/48153681e017675d?hl=de&pli=1

Tew, R. (2010, January 4). Sorrows mudlib v1.84. Retrieved April 17, 2011, from LPMuds.net: http://lpmuds.net/forum/index.php?topic=1102.0

Wikipedia. (2011). Nightmare Mudlib. Retrieved April 17, 2011, from Wikipedia: http://en.wikipedia.org/wiki/Nightmare_Mudlib






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