News from the Goolag: Free Culture, Free Beer and Free Money

News from the Goolag:

There’s no shame in having a radical idea. There is shame in having a radical idea and not admitting you were wrong.”
Jaron Lanier

The problem with Creative Commons Corporation is not just the Creative Commons license, deed or whatever they are calling it. The “deed” is the bright and shiny object that self-styled “copyfighter” Lessig wants you to focus on, all you people in “Hollywood” or as Lessig calls it “this one tiny industry” (see video above). Compared to…benefactor Google, maybe? If Lessig turns up his little nose and sniffs at the entire worldwide entertainment business as “one tiny industry”, imagine how superior he feels to songwriters and independent artists who are a part of a tiny industry? (Memo to Vice President Biden….)

The problem with Creative Commons is Creative Commons Corporation the tax exempt organization—who benefits, where does its money come from, who decides how to spend it and where does it go. Just like the users who drive “hybrid economy” that Lessig writes about (a la Flickr and Facebook) I’d suggest to you that Creative Commons Corporation the organization seems to be a lot like the Web 2.0 companies it seems designed to serve.

I say “seems” because it’s not that easy to find out much detail about Creative Commons Corporation and its donors or how it spends its money. While the Corporation has posted a “Supporters” page, there are some rather vague categories of giving (“$25,000 and up” which raises that old question, how high is up?) and then what are presumably higher levels of “commitment” that are unquantified and last a period of years? This last undisclosed commitment level is the one Google is in, which came as no surprise to me. Some quick calculations based on the Corporation’s public summary tax return (IRS Form 990) and all things being equal, it looks like Google (or somebody) leads to a guess—and it has to be just a guess—that these contributions could be in the multimillions of free money. (Also–not one word about the Open Society Institute.)

That would suggest to me that the only people who really know what goes on are the insiders. Insiders such as their board. Who’s on the board? One person is the close relative of one of the founders of Google, a company that clearly has benefited from Creative Commons Corporation licensing—which founder relative recently gave $500,000 to the Corporation. I’m sure that Creative Commons complies with everything the law has asked of it so far. And in the land of Google, doing what the law requires after a final nonappealable judgment is not only what’s good for Google, it’s good for the USA. Actually, good for the world, says General Bullmoose.

What we do know is that the Corporation raised over $20,000,000 since 2004, spent over half of it and that money went somewhere other than to the artists whose works are licensed.

Beware of Geeks Bearing Gift Licenses

One thing I think is very clear is that Creative Commons Corporation does not depend on creators for its operating expenses—therefore, how successful it is in furthering the creative goals of artists and any projects it takes on is not tied to its financial success or to its executives’ compensation. In fact, it’s not that clear what constitutes “success” at the Corporation. It seems that its financial success is clearly tied to how much money it can raise, not from attracting talent or distributing content but rather from donors and taxpayer grants–big ones by the look of it. So in this sense, it’s a different beast than a collecting society. So what do they do it for? Maybe for free beer as Free Beer advocates Felix “BYOB” Oberholzer-Gee and Koleman “Last Call” Strumpf might say.

But the Corporation is way past the free beer stage. Based on the Corporation’s 2008 990, they raised $10,468,988 in 2008—again, over $20,000,000 since 2004. But why do they need all this money? I can’t wait to see the 990 for 2009.

Do they host millions of copies of content? Not as far as I can tell. Do they have substantial bandwidth costs of delivering content to users? Doesn’t look like it. Do they sharealike their cash with the artists who make their fundraising possible? Maybe offer them cheap health insurance or a 401k match? How about instrument insurance? (You know, “instruments,” those things that make the noises on the remixes and mashups?)

Not bloody likely.

Does the Corporation undertake audits on behalf of licensors to determine whether the Corporations’ licenses are being properly used and prosecute claims against miscreants on behalf of its users? Probably not–they’d most likely be auditing some of their biggest corporate donors. And that auditing business is the kind of collective action that those nasty middlemen do, and we in the Free Culture movement like our artists served up weak, helpless and nonunion, not organized with pitchforks.

Does the Corporation respond to licensees who find out that a recording was licensed without obtaining rights in a song, a photograph was licensed without obtaining a model release, or handle some other breakdown in its licenses? Does the Corporation collect any monies on behalf of its members?

None of the above.

What appears to be happening is that the Corporation cobbled together a few license forms and then executed a great marketing campaign to make users think that they were accomplishing something. Kind of like a Legal Zoom, but with worse forms and Lessig instead of Robert Shapiro.

Even so, you have to ask yourself why they need so much money and what they do with it. I’m sure it’s for something.

Is Creative Commons Corporation part of the tax exempt equivalent of patronage jobs where people are parked until they come home to somewhere like Google, Berkman Center, iCommons or some other position in the Digital Republic? Maybe even the Berkman Center’s Global Poker Strategic Thinking Society? Given the number of connections between Google, Berkman and the U.S. Government, that wouldn’t be a shocker. (“The revolving door between Washington and Google seems to spin pretty fast with a laundry list of executives hopping back and forth between the two entities over the last few years” says Fortune magazine and, “In other words, the revolving door between Washington, D.C., and Silicon Valley keeps on turning, especially Googlers”.)

And I’m sure if you asked the Corporation, you will get some version of being funded by pure souled and highminded people. But will you hear about trusts funded by confessed felons? Will you hear about the affiliate, iCommons which is funded in part by a trust whose holders include the UK-based Remote Gambling Association, lobbyist for bookies and off-track bettors? Would there have been an iCommons if there were no Creative Commons Corporation? Does the Corporation own any shares in iCommons?

Does the work of all the people who released their work on Creative Commons licenses get remunerated if Creative Commons Corporation is sold? Does the Corporation even know the identity of those who license works using the “deed”? Does Lessig’s “hybrid economy” mean getting a bunch of people, or as Mark Zuckerberg reportedly called them, “dumb f*cks”, to give you free stuff so you can raise a bunch of money and start a company like iCommons on their backs? Or be an influencer at the policy level in Washington and such places as the OECD and make a lot of trips on the Corporation’s dime?

Of course, we can all rest easy because the creators of the content that drives financial contributions to Creative Commons Corporation and benefits the valuations of Web 2.0 companies elect an artist representative on the Corporation’s board. Oh, no—sorry—there is no artist representative elected to the Creative Commons Corporation board . Must not be enough free beer.

Cleaning Up the Poker Money

There may be simple, straightforward answers to these yes or no questions. But I haven’t heard them. If you read “Poker Money and the Ethics Professor” (or the coverage on NPR as well as Poker Cash Saver, Gambling News Source, or Poker Gazette) I think you will find the unsavory connections to be eye opening and the implications to be startling.

So the point isn’t whether anyone is actually profiting themselves with cash or laundering money—although who knows if they are–the point is transparency and accountability to the “dumb f*cks”, of which there is none that I can see. When I hear about people getting money—albeit indirectly—from confessed felons and the offshore gambling industry, it gets my attention.

Another point that keeps jumping out–does Creative Commons Corporation engage in lobbying? Not according to their tax return. But what about that “Change for Congress” thingy or the Pirate Party? How high is the ethical wall between the Corporation and everything else Lessig does? Who negotiated the arrangement for WhiteHouse.gov to impose the Corporation’s license on third party material? Since the Corporation seems mention that WhiteHouse.gov connection in their marketing materials every chance they get it seems, what does that mean in terms of “Ethics Commitments By Executive Branch Personnel”? (The whitehouse.gov thing may be a bit screwed up legally, by the way.)

A journalist happened to stumble across a connection between Creative Commons and a confessed felon—what other connections are there? Did former Lessig fund raiser and current White House deputy chief technology officer for open government Beth Noveck know about the poker money when Berkman Center Professor Charles Nesson inaugurated his Global Poker Strategic Thinking Society at her State of Play conference in…ahem…Singapore? It’s all so twisted.

Enter Taxman

You could look at the Creative Commons Corporation IRS Form 990, and that would tell you that in 2008 the corporation raised $10 million and change and spent $3.5 million and change, $2.1 million of which is salaries. 60% of their expenses. So it’s probably safe to say that that Creative Commons Corporation is mostly about the people working or connected there at least as reflected in money spent—not the people who give their content to justify the Corporation’s existence.

And in 2008, Creative Commons Corporation reported that Lawrence Lessig worked an average of 40 hours a week for the corporation (unpaid). An average of 40 hours exactly. Not 39.72 or 41.84, but exactly 40 hours a week for 52 weeks. Which I think means he must have worked exactly 40 hours each week all year. Poor guy. Maybe he needs a vacation? Maybe that’s what’s wrong. Sounds kind of like one of those unpaid internships you hear so much about down at the California Labor Commission. He was also a full-time professor at the Stanford Law School during 2008. And on a few other boards at the same time. Just working his little fingers to the bone. How does he do it? Any sabbaticals in 2008?

Apparently not—no wait. May 2008. “As tiny compensation for (almost) spending more time on the road than at home each year…we started the best tradition I’ve ever known: 1 month, off the grid, somewhere amazing. That begins today. It is a real, and essential, luxury. My apologies if it is a burden.“

So maybe not 40 hours a week after all? I wonder if the Creative Commons artists got to go “somewhere amazing” for “1 month, off the grid”. Which is a more amazing place, food stamps or unemployment?

That 40 hours a week thing seems clearly incorrect or at best overstated. Many other board members worked far less. Why would the Corporation put down such a questionable number for Lessig? What was that 40 hours a week supposed to justify? Ego? Free beer? Or something more tangible?

And then there’s the $325,505 for travel in 2008. Wow. That’s a lot of amazing travel to amazing places for a little nonprofit with fewer than 30 employees. $6,000 a week or so. On average. Where are they going? What are they doing? Meeting with artists? Looks like either a whole lot of them doing whatever it was, or maybe a few of them going a long way away to simply amazing places, and first class by the looks of it. To do what?

The Grateful Dead’s Noncommercial License

In part 2 of this piece we’ll get into the realities of the Creative Commons Corporation license, but consider a couple of things: The Grateful Dead’s version of their noncommercial license and David Bollier’s definition of the goals of the “Digital Republic”:
The Grateful Dead proposed an alternative to the “gift license” that seems to have worked well for them:

“MP3 STATEMENT TO MP3 SITE OPERATORS•The Grateful Dead and our managing organizations have long encouraged the purely non-commercial exchange of music taped at our concerts and those of our individual members.

That a new medium of distribution has arisen – digital audio files being traded over the Internet – does not change our policy in this regard.

•Our stipulations regarding digital distribution are merely extensions of those long-standing principles and they are as follow:

•No commercial gain may be sought by websites offering digital files of our music, whether through advertising, exploiting databases compiled from their traffic, or any other means.

•All participants in such digital exchange acknowledge and respect the copyrights of the performers, writers and publishers of the music.

•This notice should be clearly posted on all sites engaged in this activity.

•We reserve the ability to withdraw our sanction of non-commercial digital music should circumstances arise that compromise our ability to protect and steward the integrity of our work.”

Simple, straightforward and short. But then The Dead weren’t trying to get donations or government grants to run their organization.

David Bollier’s Declaration of the Digital Republic and Free Culture

I’m going to mention David Bollier’s speech at the Free Culture Internationale, even though I know that the wriggling will start at the Corporations about whether Bollier speaks for them, etc. David Bollier is an activist who seeks to undermine the world that has nurtured artists for hundreds of years and that has essentially destroyed their business in the last 10.

I seem to see a walking back of the connection to On the Commons, the overarching collective of groups opposing private rights (http://onthecommons.org/) So I’m sure that Bollier speaks for Creative Commons until he gets in the way of fundraising, and he’s about to get in the way, so look for them to disavow any connection to him.

But also ask yourself where have you heard this stuff before? Maybe some in the video above? (David Bollier’s statements given at the Free Culture Forum conference [www.fcforum.net] in Barcelona, Spain, on October 30, 2009):

“This conference takes place at a time of great promise and great peril. Great promise, because we have the opportunity to secure what I call the Digital Republic. And great peril, because the 20th Century content industries show few signs of recognizing the legitimacy and value of the digital commons and its principles of openness, participation and decentralized control.

And who is this ‘we’?

We are the hackers and programmers who have built and maintained GNU Linux, Apache, PERL, blogging software, wikis, social networking and wifi [or as John Perry Barlow might say, “our electronic Hezbollah”].

We are the musicians and filmmakers who create works that speak to our time —serious, funny, eccentric — and move beyond the hyped, formulaic, lowest-common-denominator “product” that Hollywood and the big record labels keep churning out. [Indies are always ignored.]

We don’t sue our audiences, and harass them and rip them off [because it’s not stealing if you give it away, maybe?].

We are entrepreneurs who champion open business models and reject the need for extreme copyright protection and closed, proprietary platforms. We realize that “the people formerly known as customers” are now “co-creators” who actively build the value of our companies [for our benefit with no compensation a/k/a “dumb f*ucks”?].

All of these people — commoners — are driving a huge, robust and expanding phenomena of global culture. It is no exaggeration to say that we constitute a great emerging superpower.

We keep fighting the music industry’s scorched-earth defense of antiquated 20th Century business models and its pitched resistance to [‘what the industry calls piracy’ as Lessig would say and what he calls] digital innovation and Internet distribution of music.

We keep fighting music collecting societies that insist on exclusive copyright arrangements with artists that prohibit artists from using Creative Commons licenses [like GEMA–who also has a running argument with the Corporation’s benefactor Google].

We are fighting the Anti-Counterfeiting Trade Agreement (ACTA), an international treaty that seeks to bypass the democratic process and public debate in order to enact the content industries’ most delirious wish-list of intellectual property abuses [sprung from the loins of Satan].

Or so we must presume. The ACTA deliberations are being held in complete secrecy. Public-interest organizations cannot even read the proposed treaty without signing non-disclosure agreements! I might add that the Obama Administration — which has declared itself a champion of open government — has raised no objections to this brazen end-run around the democracy and transparency [dogwhistle for Mr. Geist, dogwhistle for Mr. Geist].

And these folks have the audacity to lecture us about the law and morality, and declare us pirates [just because we organized the Pirate Party].”

Curiously, Bollier is funded in part by the Norman Lear Center at the USC Annenberg School.

Jaron Lanier has a succinct summary of some of what is wrong with Bollier’s yearning for power:
“Creativity requires periodic, temporary “encapsulation” as opposed to the kind of constant global openness suggested by the slogan “information wants to be free.” Biological cells have walls, academics employ temporary secrecy before they publish, and real authors with real voices might want to polish a text before releasing it. In all these cases, encapsulation is what allows for the possibility of testing and feedback that enables a quest for excellence. To be constantly diffused in a global mush is to embrace mundanity.”

Why Does It Cost So Much Free Money (and maybe Free Beer)?

I asked one pro songwriter about public licensing and he roared (“LOLROFPMGU” for digital natives): “So they raise millions to give me the privilege of giving my work away for free? The last thing I need is someone to help give away my songs on the Internet. How about raising millions to protect my Constitutional right to my creations?”

Yes, it sure does cost a lot of money to give things away for free.

Stay tuned for Part 2