Response Statement

David Wiley makes a nice point, correcting my misquote of Locke's Second Treatise and suggesting this fixes the problem of enclosure I described in my opening paper. But does it? Let's look at the results given by Google for the search "Locke ‘removes out of the state that nature'":

- Postings of excerpts by professors on class websites – Hanover, Mandell
- Political activist sites – constitution.org, LONANG, jim.com (the only complete copy), the founders' constitution
- Ad-supported sites – Chuck Brahman, Lapham's,
- Text copied from publishers – the prenhall site, the Nozick book review site

Though we no longer have essay authoring services represented, we nonetheless are faced with an enclosure in progress, and significantly, no link to the Gutenberg library or any other citeable open access source.

And the example of Locke's Second Treatise is kind to Wiley's position. Search for something that does not have an academic or political nature, and prepare to be swamped with commercial results. This comment from Peter Yared at Media Beat is typical: "If you search for any topic that is monetizable, such as ‘iPod Connectivity' or ‘Futon Filling', you will see pages and pages of search results selling products and very few that actually answer your query." (Yared, 2011) We all know this is happening, we can all see it for ourselves.

And I think there's a substantial point to be made out of that observation. Lisa Petrides sums it up nicely. "Educators… simply want to share materials with others, but don't wish for others to be able to make money off of what they have produced. It isn't based on a desire to prohibit others to earn a living, but simply that they see their work as tax-payer funded for the public good, and believe what they do should always be freely available, not repackaged for sale." (Petrides, 2011)

But let's go back to the beginning and consider David Wiley's defense of the position. (Wiley, 2011)

There is a technical argument in favour of commercial-friendly licensing, he writes, that is "straightforward and unassailable." The technical argument is based on what appears to be a contradiction between different understandings of the meaning of ‘commercial' in Creative Commons licenses, specifically:<

- Commercial, in the sense of commercial users of the content, specifically, individuals, nonprofit organizations or institutions, or commercial copy shops performing work for some noncommercial user, and

- Commercial, in the sense of commercial use of the content, such as charging fees for access, attaching advertisements to content, and the like.

Wiley writes, "If a lawyer of the caliber of Larry Lessig does not know what NC means, how is your run-of-the-mill user supposed to understand what s/he may or may not do with a NC-licensed work?"

I am not an expert, but my understanding is that the distinction between commercial and non-commercial entities, as opposed to use, is a particularly American distinction. It echoes the disagreement Wiley and I had regarding the proposal that there be an education-specific Creative Commons license. (Wiley, Open Education License Draft, 2007) The proposal, which I opposed, (Downes, 2004) was that content could be licensed for educational use only, where this was defined as use by an educational organization such as a school, college, university, or other NGO. My objection at the time was that such a requirement favoured institutions that charged money for access to resources, and created a bias against providers of educational material for informal, individual and home use.

But it's one thing to say that a lawyer is confused, and quite another to say that people are confused. In Wiley's own text, he was perfectly clear about what people believed was meant by commercial and non-commercial: "uses that earn users money or involve advertising…" The broad strokes of what is understood by non-commercial are understood by all, and if lawyers encounter difficulty pinning down an exact definition, well, that is what lawyers are paid to do. But our response here should be to do what Creative Commons did and abandon any attempt to define ‘commercial' according to whether a user is a commercial enterprise, and to look instead at the use.

Then the question of whether an act of copying falls under the non-commercial clause becomes a very simple question: are you trying to make money off some else's freely contributed work? If the answer is "yes" then you are violating the "noncommercial use" clause. If the answer is "no", then you aren't. And if you're trying to find a narrow interpretation, or a nuance, or a loophole, or some other condition only a lawyer could misunderstand in order to allow your use of noncommercial material in some way that might be deemed commercial use, then you're probably violating the clause. It's the old saying, "if you have to ask whether you're breaking the rule, you're breaking the rule."

But if there is a need for another litmus test to determine whether or not a use is a commercial use, then we can return to the original desire of those authoring non-commercial clauses into their licenses, the desire for free and unfettered access. It is in fact this condition I apply to materials I am considering for linking in OLDaily. Basically, the condition is this: if the reader can directly access the materials without restraint, then the use is non-commercial. Otherwise, it is commercial.

By focusing on the imposition of access controls on content, I avoid distracting myself with the reason for the access controls (who am I to try to read someone's mind? If they're trying to enclose content for any purpose, whether to charge money, collect emails, force people to view ads, keep stuff private, whatever, then it's commercial – they seek some personal gain, which they will obtain through restricting access, which is the basis for commerce, including but not limited to commerce having directly to do with money). In other words, commercial use is the act of restricting access.

Dissemblance hangs on nuance. The numerous proponents of commercial use in this forum all in one way or another argue that they are in the business of providing open access. Yet they all in one way or another have based a business practice of extracting money from people who wish to access these open materials. The expect – indeed, they require – that materials be contributed by users with no conditions on commercial use whatsoever, and they translate this into a mechanism for sustaining their own enterprise.

The argument, such as is stated by Erik Möller, is that such conditions, "prohibitions of commercial use or derivative works prevent valid and important uses of educational resources." (Möller, 2011) But if we examine these "valid and important" uses, we find they depend on mechanisms for restricting access. Möller provides his own example: "the most widely used publishing platforms like YouTube and WordPress are advertising-supported."

Quite so. And YouTube will vigorously resist efforts to harvest and display YouTube content in alternative venues. YouTube's terms of service stipulates, "You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization." YouTube has become one of the sole sources of online video precisely by preventing use of those videos elsewhere; that's how it is able to sustain itself through advertising, sales of user data, and the like. Flickr, Facebook, Twitter and the rest of these services have similarly restrictive conditions in their terms of service. It doesn't matter how users license their content on these sites; they are locked down for exclusive commercial use by the owner.

Geoff Cain makes the point nicely in his comment. "Favoring commercial use IS a restriction. The proponents of commercial use are writing about this as if some right is being taken away. If it is the right to silo learning for profit, then I hope this will eventually be the case."

Ahrash Bissell, writing for the Monterey Institute for Technology and Education (MITE), expresses the same sort of concern David Wiley does. "The meaning of non-commercial is unclear," he writes, "especially for educational and other non-profit institutions." For example, "One possible interpretation is that NC-licensed materials are free for any non-profit institution to use in any manner, including hosting the content on their servers, embedding the content in other applications, and even perhaps redistributing the content for a fee (e.g., for cost-recovery)."

Again, notice the nuance. The intent, toward which we work though each successive phrase in the paragraph, is to raise revenue for the institution by restricting access. The defense of this strategy is the argument on grounds that it's not clear whether the use is commercial or non-commercial. But there are in fact two very clear alternative strategies MITE could use to employ open educational resources:

- It could mount those resources on a public web server, open for all to use, to access, and to copy resources for their own use, or,

- It could mount those resources on a server which restricts access in some way in order to benefit the institution or its tuition-paying students

Yes, the lawyers could get into agonizing arguments about the nuance of whether the latter action is commercial or non-commercial. But the relevant fact, from the perspective of the people who actually employ the non-commercial clause, is that access is being restricted. MITE could very easily host the materials in such a way that all can access them, thereby enjoying the benefits of free and open educational resources, without violating the authors' intents that they be freely shared.

The "truly global learning commons" that Ahrash Bissell writes about, and which is heartily endorsed here, will emerge only with individuals and institutions stop restricting access for personal or institutional gain.


Downes, S. (2004, May 5). Free for Education Home Page. Retrieved April 20, 2011, from Stephen's Web: http://www.downes.ca/post/7159


Möller, E. (2011, April 19). Guest statement (opening phase). Retrieved April 20, 2011, from WSIS Platform of Communities: http://www.wsis-community.org/pg/debates/group:14358/phase/251476/252289

Petrides, L. (2011, April 19). Guest statement (opening phase). Retrieved April 20, 2011, from WSIS Platform of Communities: http://www.wsis-community.org/pg/debates/group:14358/phase/251476/252289

Wiley, D. (2011, April 18). Initial statement. Retrieved April 20, 2011, from WSIS Platform of Communities: http://www.wsis-community.org/pg/debates/group:14358/phase/251476/252289

Wiley, D. (2007, August 8). Open Education License Draft. Retrieved April 20, 2011, from iterating toward openness: http://opencontent.org/blog/archives/355


Yared, P. (2011, January 12). Google already knows its search sucks (and is working to fix it). Retrieved April 20, 2011, from Media Beat: http://venturebeat.com/2011/01/12/google-search/


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