Addendum: Did TV Tropes violate their own license?

In my previous post, I noted that TV Tropes used to be available under a BY-SA license, but then they changed to a BY-NC-SA license. I consider this a bad move, of course, but after I finished my post, another thought occurred to me: what if it’s illegal?

To understand why this would be illegal, you’ve got to know a few things about Creative Commons licenses and how they work. First off, they are supposed to be irrevocable. Consider the following excerpts from the BY-SA legal code:

Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work…

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats….

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

The code is long and boring to read, but the parts I just quoted seem pretty clear that the license lasts as long as the copyright. This doesn’t mean that TV Tropes can’t re-release stuff under the BY-NC-SA license, but it does mean that everything is still covered by the more liberal BY-SA license. This is why All The Tropes has the right to take all of TV Tropes’s old stuff and repost it under the BY-SA license. So, at the very least, it is misleading for TV Tropes to imply that none of their current content is covered by BY-SA.

But there’s a deeper problem than that. It comes down to a question of “ownership”. The Creative Commons legal code notes that the “Licensor” reserves the right to release the Work under different license terms. So the question is: who is the proper “Licensor” for TV Tropes’s content?

If TV Tropes, LLC, is the proper “owner” of the content in question, then they do have the right to relicense their stuff, although I question the ethics of doing so. But I don’t think they can call themselves the “owner” of most of their content! Their current administrative policy is to take “irrevocable ownership…with all rights surrendered” of everything they receive, but some of their older administrative pages say nothing about that at all! In other words, TV Tropes simply cannot claim to own the copyrights on anything submitted to them before they changed their policy, which happened in November 2013. If TV Tropes does not own that stuff, then the contributors (and there are a lot of contributors) still have the rights to it, according to the Berne Convention. They gave TV Tropes permission to use it under the BY-SA license, but that doesn’t include the right to relicense their contributions under the BY-NC-SA license! Did the legions of contributors ever explicitly give TV Tropes permission to relicense their work? If not, then TV Tropes is violating the BY-SA license, and by so doing, they lose their rights under that license, meaning that they lose the rights to use the work at all! Their relicensing the content to BY-NC-SA is a massive act of infringement, and they had better pay up – or else!

Of course, it’s been nearly a year since TV Tropes started claiming irrevocable ownership, and over two years since they started marking everything as BY-NC-SA. Why hasn’t anything bad happened to them yet? I believe it is because of the inherent weakness of Creative Commons licenses: they rely on copyright for their power, and copyright is not a tool for the masses. Copyright is now, as it has ever been, a tool for the few to oppress the many. Expecting it to come through in our favor is a foolish proposition, and everyone who does so (including Creative Commons) has made the fatal mistake of believing hype over substance.

But perhaps I am being too pessimistic. Time will tell. In the meantime, I intend to probe this issue further, and see if we can’t actually use these licenses to put some pressure on TV Tropes. Maybe I’m a fool, but I know that large organizations live and die by the words on paper, and there are cases on the books of the lowly bringing down the haughty using the law. Wish me luck.

P.S. For a good bit of reading on the trouble with copyright, check out this essay: ‘Balanced’ Copyright: Not A Magic Solving Word, by Alan Story (and some good follow-up on Techdirt). I’ll have to give that essay a more thorough reading later, but for now, let me just say that I fully agree with Alan Story’s suggestion to “burn Berne”.

Fork TV Tropes – use All The Tropes instead!

All of you who are reading this are probably already familiar with TV Tropes, the great wiki of the elements of fiction. It’s a fun resource, and a powerful time sink. But there’s a problem with it, and from my vantage point as a free culture fanatic, it’s a big problem: the license.

TV Tropes uses Creative Commons’s BY-NC-SA license. This license means that you can copy and modify the content however you want, but subject to these four conditions:
1. You must give proper attribution to the content creator (BY)
2. You must not use it commercially (NC)
3. You must make your content available under the same license (SA)
4. You must not add any DRM to what you make (this is standard in all Creative Commons licenses)

Now, conditions 1 and 4 are great by me, and condition 3 wouldn’t be so bad, except for condition 2. That’s actually a very profound restriction, dictating how someone can use the information. While conditions 1, 3, and 4 just tell you what you must do when you use it, condition 2 tells you how you must use it. This is a broad restriction, and not a very helpful one.

Smarter folks than myself have written a lot about the potential harm in non-commercial restrictions. The good folks at Freedom Defined have put together an excellent page: The case for Free use: reasons not to use a Creative Commons -NC license. I also recommend the following post: Why The NC Permission Culture Simply Doesn’t Work.

But there’s an even better argument against the NC provision, especially since TV Tropes is a wiki: the most popular wiki of all doesn’t use it! Wikipedia’s license is BY-SA, commercial reuse fully allowed. It doesn’t seem to have harmed Wikipedia at all, and it makes Wikipedia’s content more useful to the world. Curiously enough, TV Tropes used to be available under the BY-SA license, as this archived page shows. Why did they change? I can’t say for sure, but I suspect it was because they wanted more control over the submissions they were getting. Wikipedia notes here that TV Tropes even changed their terms of use to demand total ownership of user contributions.

Well, some folks weren’t happy about the change, and they decided to do something about it. Taking advantage of the freeing nature of the BY-SA license, these folks took TV Tropes’s stuff and forked it, creating a new tropes wiki: All The Tropes (also available on Wikia). All The Tropes offers folks a place to give and receive truly free content when discussing culture, creating a repository of knowledge and opinion that’s available for anyone to use for any reason, commercial or not. There is no top-down control, nor top-down censorship, and they even use better software to run their wiki. Seriously, check the place out.

So, the next time you want to discuss some incredibly overused cliche, or some element of fiction that seems to be everywhere you look, or some magnificent moment in fiction that was just so awesome, forget the control freaks over at TV Tropes. Go to All The Tropes instead. Choose freedom. You’ll be glad you did.

Why I Copyleft (reposted from Livejournal)

The following is a slightly edited repost of this LJ post. I’m moving it here for completeness’s sake.

If you look at my personal copyright policy, you’ll see that everything I make is automatically copyleft. Deciding to do so actually took me a bit of time, because there was another option that I still find very appealing: making all of my things public domain. I wanted to do that and I still want to do it, and I shall now attempt to explain why I want what I want and why I’m not doing what I want to do.

But first, what do I mean by “public domain”? There are at least two different definitions for this term.

The first definition of “public domain”, according to the great body of all knowledge, is whatever is not covered by “intellectual property rights” [sic]. This is the definition we’re all probably more familiar with. But there is a second definition. Consider the disclaimer from the bottom of the Crypto Museum’s website. I quote:

“To the best of our knowledge, this site only contains information that is either available in the public domain or that is unclassified or that has been officially declassified. Whenever possible, the source of the information will be credited in the References section at the bottom of each page. In some cases the classification status of an object is not entirely clear because there is no list of classified objects available in the public domain.” (emphasis in original)

Here, “public domain” basically means “not classified”, or, in other words, “known to the public”. If this essay by Crosbie Fitch is correct, then this definition is actually the older one, and I think that it is the more logical definition.

If you disagree, please consider this: what happens when you “publish” something? To publish is to make something known to the public. When something is made public, it is in the public’s realm and under the public’s control. Does this not make it part of “the public domain”? Published material certainly can’t be called “classified”. J.K. Rowling may own the copyright on Harry Potter, but millions of people have read those beloved books, and no one can take the words away from them. Harry Potter is in our hearts and minds, and claiming to “own” the “expressions” in the HP series is ridiculous; how can you own what you have given away millions of times over? So really, all published works ought to be Public Domain. If you want to keep something private (a state which I’m going to call “Private Domain”), then don’t make it public, or in other words, don’t publish it.

Alas, this simple concept does not appeal to monopolists and censors, so they invented “intellectual property” to lock up parts of public knowledge. Within the Public Domain, they created a new state which I shall call the Plundered Domain. The Plundered Domain consists of all public information that others force us to treat as if it were private. It’s an inherently unstable and illogical state of affairs, but people seek to perpetuate it because of the opportunities it gives for control and profit. In our time, the Plundered Domain has steadily grown, swallowing up more and more of the Public Domain. Mike Linksvayer has a good writeup here, showing how the reach of copyright has continuously expanded, entrapping ever greater amounts of information within the Plundered Domain.

So when Zacqary Adam Green post an angry rant in response to an appeals court saying that putting out-of-copyright works back into copyright is totally okay, I don’t get quite as angry as Zacqary, because how can I get mad at copyright for doing what it’s always done? “Intellectual property law” has never served the public; it is a tool for plunderers.

In response to this terrible state of affairs, many people set out to formally reject the principles of the Plundered Domain and make their works truly public. Some declared their work to be “no rights reserved”, some adopted a BSD-style license, and some got really snarky, like Woody Guthrie:

“This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

The trouble is, it didn’t quite work. Microsoft and Apple happily swallowed up BSD-licensed code but neglected to publicize their alterations, instead preferring to embrace, extend and extinguish the free alternatives to their proprietary systems. And poor Woody got it even worse: five different organizations still claim copyright over his songs, hoping to control the music he had sought to liberate.

It was not enough to refuse the Plundered Domain, and it was too dangerous to go against it. The lawmakers would not be denied. People needed a new solution. Then some cheeky folks had a thought: if we can’t afford to ignore the law, and we can’t afford to change the law, and we certainly can’t afford to break the law, can we still subvert the law? Can we use the power of the law against itself?

One of these cheeky folks was Richard Stallman, who created the GNU General Public License. Under the terms of the GPL, you could use information, and modify and share and sell that information, and everything else that you’d be able to if the information were “public domain”, except for privatizing the information. GPL’ed stuff stayed under the GPL for as long as it stayed under copyright. In the words of Rob Myers, it was an “ironisation of copyright law”, taking the means of the law to achieve opposite ends.

Sadly, the GPL wasn’t perfect, so it’s needed two major revisions, but even worse than that was Stallman’s decision to not apply it uniformly. He also made the Free Documentation License (which sounds nice, but Debian rejected it for not being a truly free license, and Wikipedia rejected it in favor of the superior CC-BY-SA) and the Verbatim Copying License, which is brief, simple, and utterly wrongheaded.

But in spite of human flaws and frailties, the principle of copyleft was established, and it has held true. Under the GPL, free software has flourished, with GNU/Linux being the shining star, and under CC-BY-SA, free knowledge and culture have flourished, with Wikipedia being the shining star. The copylefters successfully created a new domain, which I shall call the Protected Domain. Within the Protected Domain, free people can stay free, safe from the grasp of plunderers.

Now, none of this is to say that I’ll never make anything “public domain”. Lots of folks whom I admire have done so. Folks like Peter Saint-Andre and Nina Paley and Mike Linksvayer and Rick Falkvinge and the previously mentioned Zacqary Adam Green. There’s value in releasing stuff under a totally liberal license, and I will do so for some of the stuff I do. But under our current system, I don’t consider that to be a safe default. It’s sad to say it, but we need protection from the laws we live under, and in practice, the best protection has come from subverting the laws to work against themselves.

Perhaps someday, when the Plundered Domain has been destroyed and the Protected Domain is free to be merely Public again, I shall look back on all this with a laugh. For now, I copyleft. You are free to use any information I give you, but not free to take away others’ freedom. And that’s how it should be.