Wiley'S Misguided Advocacy

Half an Hour

David Wiley once again launches into advocacy for the CC-by license. We've been through this many times, so I'll keep it relatively brief. His text is italicized.
> There is a growing consensus among those who work in open education that the Creative Commons Attribution (BY) License is our preferred license. No there isn't. The list of organizations hasn't grown over the years, and the number people from this list remains stable. > Since the first release of the Creative Commons licenses, newcomers to the field have been attracted to licenses containing the non-commercial (NC) condition. There's a whole paragraph devoted to depicting advocates of the Non-Commercial license (NC) as "newcomers". As if I am a newcomer. As if MIT's OpenCourseWare is a newcomer. > The BY license best reflects our values of eliminating friction, maximizing interoperability, and promoting unanticipated and innovative uses of OER. >No one knows what the NC license condition means, including Creative Commons. The license language is so vague that the only way to determine definitively whether a use is commercial or not is to go to court and have a judge decide. This vagueness is cited by proponents of CC-by but hasn't actually been a problem. There are some good rules-of-thumb which can guide you: - if you have to ask whether your use is a commercial use, it probably is - if someone has to pay to access your resource, it probably is > Example – I want to use some NC-licensed content in my course, but students can only attend my course if they pay tuition. Is that a commercial use? It's a commercial use if the only way people can access the resource is to pay you tuition. But if the resource is free to access for everyone, it doesn't matter whether your students use it also. > For would-be authors of NC-licensed content, the only way to resolve the confusion arising from someone using your content in a way that you think is commercial but they think is non-commercial is to lawyer up and send a cease and desist letter. This isn't unique to the NC condition. It applies to all CC-licensed content. In practice, I find that there has been more of a problem enforcing the attribution condition. But nobody has suggested removing it on these grounds. > The primary thing you gain by choosing a license that includes the NC condition ... The primary benefit is that you prevent people from turning it into a commercial product and selling it. There are numerous reasons why you may want to do this. > Why would someone go to all the cost and effort involved in selling copies of your CC BY licensed material (e.g., paying for ads to drive traffic to the site where they’re selling it) when every copy will include instructions on where people can get the same material for free instead? Because this access is often theoretical. Should the original ever disappear (or in the case of OpenStax, should the URL ever change) there is no resourse; the user must pay for the resource. Saying things like "there would be very little incentive..." creates a nice hypothetical, but we have no way of knowing that there won't be an incentive. We've seen that large businesses can be created out of very marginal returns, soour "very little incentive" is someone else's business plan. > The CC BY language gives you practical protection from newcomers’ concern that some interloper is going to make a million dollars from their work (even if it does not offer protection against all theoretical possibilities).... This is why you don’t see Pearson, McGraw, or other major publishers reselling copies of CC BY textbooks. If we limit the example to textbooks, the statement is possibly true. However, publishers have made millions selling out-of-copyright works, such as the classics of literature. Walt Disney made a fortune by appropriating folklore and fairy stories and marketing them as Disney property. > The only counterexample I can offer to this line of argument, and it’s not a direct one, is the CC BY simulations created by PhET. As I understand it, at least one major publisher includes PhET simulations in their offerings. The publisher doesn’t sell the simulations as a product – I don’t think they could sell the simulations this way for the reasons I’ve described above. But they do include the simulations as a “free extra” to make their textbooks or courseware more attractive than those offered by other publishers. This sounds like exactly the sort of situation I would like to avoid. And it's not nearly as rare as described here. Consider, for example, companies like ResearchGate, which have slurped up all the open access publications they can find, and then require that readers log in to read them, thus creating data they sell to advertisers and publishers. > On the one hand, the faculty member you speak to may feel like this possibility represents a lost opportunity to make some money. I don't actually think this is what motivates supporters of NC. Mostly, people don't want their work to become part of a commercial product that people would have to pay money to access. > Personally, for the OER that I create, I want every learner in the world to use them – regardless of which major resource (commercial or open textbook) their faculty have decided to adopt. If publishers decide to throw my OER in as free extras with their textbooks or courseware, that just decreases the amount of search engine optimization and other work I have to do to make sure people know about the OER I’ve created. It’s free advertising for my OER. It's the existence of commercial content that makes SEO and advertising a requirement. This alone should be a reason to discourage CC-by. It shouldn't be necessary for us to have to advertise open access content. It's a requirement only because commercial publishers want to make sure readers cannot find the free content. Most of us do not want to become entrepreneurs or publishers or whatever. We simply want to share the work we've created. It's the commercial publishing system that makes that hard. As always, I argue that people should adopt whatever license best suits their interests. I continue to fail to understand why David Wiley doesn't respect that choice.
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