Avoiding the Freedom Argument
In addition to championing the practical considerations of license interoperability for building a commons, arguments for the use of the Attribution license over copyleft are extending the notion of interoperability to a libertarian ideal of allowing the users of a piece of content the freedom to choose whatever license they wish. In “Openness, Radicalism, and Tolerance,” David Wiley argues against definitions of openness—such as the Open Knowledge Definition referred to in the introduction of this article—that are a “litmus test” that judges some works open and others not:
If someone has gone out of their way to waive some of the rights guaranteed them under the law so that they can share their creative works—even if that action is to apply a relatively restrictive CC BY-NC-ND to their content—why aren’t we praising that? Why aren’t we encouraging and cultivating and nurturing that? Why are we instead decreeing from a pretended throne on high, “Your licensing decision has been weighed in the balance, and has been found wanting. You are not deemed worthy.”
In his own definition of Open Content, which he describes in “Openness, Radicalism, and Tolerance” as an inclusive approach, Wiley qualifies the 4Rs on a sliding scale where Attribution would be more desirable than Share Alike, as well as better than licenses that use the Noncommercial or No Derivatives restrictions. In another post regarding Share Alike and Noncommercial restrictions, Wiley also argues some licenses to be more open than the other because of “a) their interoperability b) the freedom they provide to all persons (and companies) to use, reuse and redistribute” (“Why Share-Alike Licenses”).
Wiley is right. There is a benefit in calling works licensed with the No Derivatives and/or Noncommercial clauses open content; they are works some students can use to learn (only “some” because of possible language barriers to using the original text and, in some cases, technological barriers), even when the license used does not allow for derivatives. Licenses with either of these restrictions do contribute to the education commons.
I also agree that there is a difference between licenses that merely add content to the education commons versus those that help sustain it and how well they sustain it. Although as this article will make clear, which licenses are best at making the commons more sustainable is contentious. Unfortunately, Wiley’s definition does not allow for competing view points. Despite the good intentions, Wiley’s attempt at inclusion fails since by measuring licenses by degrees of openness, his open content definition still marginalizes the contributions of some creators over others. The problem is that the 4Rs Framework, upon which the definition is based, is unsuitable for creating an inclusive definition of open content; in fact, it appears to be specifically designed to exclude content that does not allow for remixing and revising through its emphasis of “revise” and “remix” as not “reuse.”
Equally a problem is the ideal of personal freedom. If choosing the Attribution license is about allowing creators personal freedom to use whatever license they want, but implied is that everyone should choose an Attribution license, a double standard exists. Now, I do recognize that the efforts to defend the Attribution license in “freedom” rhetoric originates in how “free software” is defined by the Free Software Foundation (FSF), and used by FSF, in turn, to define copyleft. According to the FSF, for software to be free, users of a piece of code must have the following “four essential freedoms:
- The freedom to run the program, for any purpose (freedom 0).
- The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.
- The freedom to redistribute copies so you can help your neighbor (freedom 2).
- The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this” (“Free Software Definition”)
The FSF then intertwines their definition of copyleft with freedom:
To copyleft a program, we first state that it is copyrighted; then we add distribution terms, which are a legal instrument that gives everyone the rights to use, modify, and redistribute the program’s code, or any program derived from it, but only if the distribution terms are unchanged. Thus, the code and the freedoms become legally inseparable. (“What Is Copyleft”)
As a copyleft advocate, I try to avoid the "free" argument. I don’t believe the definition of copyleft to be “inseparable” from freedom, nor do I feel that my definition of copyleft offered in the introduction needs to include the concept of freedom in order for us to understand how copyleft works and discuss how it helps to build a commons.
I also believe it important not to confuse or conflate the effects and pragmatic principles of copyleft when applied to OER with the ideology of the FSF. Promoting the notion of "freedom" can certainly be a powerful rhetorical strategy for convincing some people to adopt one license over the other. It was undoubtedly effective for creating an army of programmers committed to developing free software. But it is often less than helpful for arguing the practical benefits of copyleft to many audiences who need to be convinced of a license's usefulness and the production model built around it. This is a lesson that many in FLOSS have already learned, and it is the reason for the coining of the term “open source,” the establishment of the Open Source Initiative, and the creation of the Open Source Definition (Bollier 34-36; Raymond 211-217).
However, unlike the FLOSS movement which has been unable to define itself with a unified message, the open education community has a shared goal that works well for justifying the work of open education to others: the creation and growth of a sustainable education commons. By assessing how well licenses work to meet that goal and by avoiding divisive rhetoric that does not support that assessment, open education can more easily build principles that can be agreed upon in the community.