Stephen,

Rather than exploring a complex hypothetical scenario, why not look at a real educational resource with an extensive history that long pre-dates CC licenses, and consider whether or not we consider it "open"--

The play Hamlet is in the public domain, and as such, there is no restriction on its reuse relating to whether or not that use incurs profit. (There's nothing analogous to the "NC" provision.)

So, any publisher can -- and many publishers have -- charged money for it. I find it difficult to understand how that can be described as locking it down or preventing reuse, because it can also be downloaded for free (or at least, free of charges beyond the needed equipment) from places like Wikisource: http://en.wikisource.org/wiki/The_Tragedy_of_Hamlet,_Prince_of_Denmark/Act_1

But more to the point, a (non-profit) high school *or* a (for-profit) theatre company may perform Hamlet without paying anybody a royalty.

It seems to me that your position is that Hamlet is not free, because there is no provision protecting it from commercial exploitation. Is that correct?

-Pete

On Wed, Jun 12, 2013 at 9:24 AM, Stephen Downes <[log in to unmask]> wrote:

On 12/06/2013 12:58 PM, rory wrote:

If someone closes off OER, someone else can reproduce it elsewhere ad infinitum at no cost. This bears no resemblance to roads with their physical limitations.

I did address this in my text, but having heard from several people on this point now, I conclude my analogy may be been too subtle.

This was not an argument I hadn't anticipated. Here it is restated in my analogy: "You can always take another road," declared the proponents of the new "Free Road" movement. "Nothing prevents you from you from taking one of the more restrictive roads that do not allow the construction of toll booths."

I did answer it at length (though none of the critics gives me credit for even trying).

In order to reproduce something (let it be a road or an OER) one must first have access to the original. Once a commercial version of the resource exists, there is significant incentive on the part of the commercial owner to block or limit access to the original, so that the only available version is the commercial version.

I have over the years identified (and linked to in my newsletter) numerous examples of how access to the original free resource may be limited:
- legal challenges and FUD - making it too much of a risk to use the non-commercial resource
- poisoning - using technical and legal requirements requiring that resources in some way be 'certified'
- flooding - making the free resource just one out of hundreds of versions, pushing the free resource down in search results
- book-storing - creating self-contained environments in which links to free versions are not available
- salting - adding 'extra value' to the commercial resource not available in the free resource
I could add many more but you get the point. These are clear and obvious to anyone who actually looks for them; the evidence is as plain as day.

In my analogy I represented this response as follows: "Eventually people just used the new 'Free Roads,' paying their tolls every few miles, because there was really no alternative. The 'Free Roads' wouldn't connect to the 'restrictive' No-Toll roads, partially because of the intersect-alike clause, and partly because NT roads really did connect to other places, and the Free Road owners simply didn't want the competition.

"Not that it would have mattered. The Free Road owners could always depend on exclusivity. Often, the only way to get from point A to point B was to use a Free Road - they would obtain the concession (and often public financing) to build a Free Road over a river or through a mountain pass, and if you wanted to use it, you had to sign up for a Free Road Account and you would be billed for the full distance traveled, whether you used Free Roads or NT."

Again - maybe too subtle.

A great deal is made of the fact "non-rivalrous goods like data on the Internet" can be reproduced at will. But in publishing and commerce generally, there are rivalrous goods. The time and attention of readers, the trechnology at their disposal, the balancing of rights and regulations - all these are rivalrous elements in what would otherwise nonriovalrous market. It is from my perspective a naive and unsupportable argument to suggest that people can just reproduce free copies of these newly-commercialized resources.

Indeed, if the business model of publishers of CC-by content were so easily disrupted, there would be no return on their investment, and they would never get into the business. The very fact that there is a pro-commercial lobby for the use of (otherwise) free resources is itself proof that the "you can just make free copies" argument is fallacious.

OK, that's it, I'm done. No more arguing from me on this. If you continue to support the "everyone must support CC-by" position, I will simply regard you as being against free and open access to learning and learning resources, and working instead for people trying to privatize the education system, puting your own narrow self-interest ahead of wider social values (putting you in my mind on par with banks and the oil industry).

"Let's see someone close off the route to Europe from America. As long as the air and water are free they can close off what they want and who would pay attention!"

Indeed. There are millions of would-be immigrants around the world who would only wish that were the case. They wish nobody had thought of a way of defining 'free' in terms of borders. I do know that anyone attempting to cross from Europe to North America by means of a purely non-commercial route will be arrested for immigration violations. The Open Road has truely been closed.

-- Stephen

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Stephen Downes
Moncton, New Brunswick, Canada
[log in to unmask] ~ http://www.downes.ca
Free Learning

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