In his latest “Creative Commons in Review” column, Lawrence Lessig has responded at length to my article “The Case for Free Use:
Reasons Not to Use a Creative Commons -NC License”. He agrees with the gist of the article, but points out:

For example, imagine you’re in a band and you’ve recorded a new song. You’re happy to have it spread around the Internet. But you’re not keen that Sony include it on a CD — at least without asking you first. If you release the song under a simple Attribution license there’s no reason Sony (or anyone else) couldn’t take your song and sell it. And I personally see nothing wrong with you wanting to reserve your commercial rights so that Sony has to ask you permission (and pay you) before they can profit from your music.

Let’s not forget that the CC-NC license alone guarantees that the work, if it is of interest to anyone, will be freely available on the Net. This is really important, and Lessig does not mention it — perhaps he thinks it is obvious, but I do not believe it is. Anyone who uses a CC-NC license must understand that they are giving away their work to the world for free. Even for large files, bandwidth costs have become negligible thanks to new distribution mechanisms such as BitTorrent and public media archives like Ourmedia. Today, anyone can essentially distribute any large static media file in demand to anyone else, for free. You can even do it without advertising.

This is only part of the media revolution. The other part are new mechanisms to tell people about interesting resources. For textual content, blogs are already doing a pretty good job. Social tagging, collaborative filtering – all this is happening. In combination, this means that there is a clear trend that any freely licensed work (NC or not) that is of high value to many will find its way through the network. In fact, to a lesser extent, this is even true for proprietary content — but here the content industry can impose regulations to push the distribution into darknets. For files that can be freely copied, the Net can develop its full strengths as a medium to spread memes and build mindshare.

Yes, there are still millions of people who have never read a blog. But as a new generation is growing up with these tools — the generation which is the primary target audience of much of the music we’re talking about — this is changing rapidly.

So, if Sony managed to make a buck of a work that is freely available throughout the Net, then I very much doubt they would be able to do so for much longer. I’m also quite sure that the artist in question could then easily land a contract and go proprietary, if they wanted to. There will very likely always be distribution and marketing platforms that could get away with charging a small amount for a song — but arguably, they are performing a valuable service to the artist in return, by getting the word out about their music. It’s also quite likely in the current media landscape that such platforms would use freely licensed content as teasing material for their commercial offerings, and make it available for free download.

It is true that the argument cannot be entirely discounted. We are living in times of transition, where it is possible to make money off people’s ignorance or their attachment to traditional distribution media, such as CDs. But if anything, this transition will be accelerated by putting more content under truly free licenses.

As I’ve said before, I hope that Creative Commons will inform creators about the consequences of the NC licensing choice. Lessig signals that this may soon be done, and that’s great. But the really interesting question, in my mind, is not how to stop companies like Sony from commecrially exploiting freely available works — it’s how to build an economy of goodwill, one where creators of free quality content are rewarded fairly.

These two issues are very much related. The reason people choose the NC license is that they (often subconsciously) feel that somehow, some day, they might make lots of money with their content — and they don’t want anyone else to do it. They may also feel that, with an NC license, they can still keep some control over how frequently their work is distributed across the planet (as noted above, this is not true).

If we can demonstrate that content creators can make money without utilizing copright, then much of the rationale for using an NC license disappears. All that remains to be done then is to improve these mechanisms to the point where they become the dominant mechanism to find and pay for content.

Take these nifty buttons:

They practically cry out to be turned into the decentralized infrastructure to promote such a platform. Instead of pointing to static license pages, they could point to dynamic pages about the creators and their works. These pages would allow visitors to not only donate money, but also to make suggestions for new works (work for hire), or to pledge to support a project or cause defined by the creator.

The pledging could work similarly to Pledgebank — only if enough other people sign up to meet the goal, anyone has to pay. And one of the cool things about Pledgebank is that it is open-ended. It doesn’t have to be about money, and it doesn’t have to benefit the original creator.

Once you have such a platform, you can bootstrap it into something ever more powerful. You can add group-forming features where Creative Commons users can join forces to support particular causes or projects, or vote on how donated money is spent. You can organize fundraisers to make old proprietary content freely available. You can improve the functionality for work-for-hire projects (milestones, specifications, collaborative funding). You can add better search and discovery tools. You can improve usability. It’s a practically open-ended project.

With or without a license that prohibits commercial use, these mechanisms are needed to make the free content economy work. Here’s a challenge to Larry: Turn the Creative Commons directory into a platform for discovering content and renumerating creators. Make it an open source project and get the best brains out in the field of social networking to work on this — but put some paid developers on the task to make sure the job gets done. Nobody on the planet is in a better position than you are to get such a project off the ground.